Consumer Rights Bill (HL Bill 64)

(5) In subsection (4) “average consumer” means a consumer who is reasonably
well-informed, observant and circumspect.

(6) This section does not apply to a term of a contract listed in Part 1 of Schedule 2.

66 Bar on exclusion or restriction of negligence liability

(1) 5A trader cannot by a term of a consumer contract or by a consumer notice
exclude or restrict liability for death or personal injury resulting from
negligence.

(2) Where a term of a consumer contract, or a consumer notice, purports to exclude
or restrict a trader’s liability for negligence, a person is not to be taken to have
10voluntarily accepted any risk merely because the person agreed to or knew
about the term or notice.

(3) In this section “personal injury” includes any disease and any impairment of
physical or mental condition.

(4) In this section “negligence” means the breach of—

(a) 15any obligation to take reasonable care or exercise reasonable skill in the
performance of a contract where the obligation arises from an express
or implied term of the contract,

(b) a common law duty to take reasonable care or exercise reasonable skill,

(c) the common duty of care imposed by the Occupiers’ Liability Act 1957
20or the Occupiers’ Liability Act (Northern Ireland) 1957, or

(d) the duty of reasonable care imposed by section 2(1) of the Occupiers’
Liability (Scotland) Act 1960.

(5) It is immaterial for the purposes of subsection (4)—

(a) whether a breach of duty or obligation was inadvertent or intentional,
25or

(b) whether liability for it arises directly or vicariously.

(6) This section is subject to section 67 (which makes provision about the scope of
this section).

67 Scope of section 66

(1) 30Section 66 does not apply to—

(a) any contract so far as it is a contract of insurance, including a contract
to pay an annuity on human life, or

(b) any contract so far as it relates to the creation or transfer of an interest
in land.

(2) 35Section 66 does not affect the validity of any discharge or indemnity given by
a person in consideration of the receipt by that person of compensation in
settlement of any claim the person has.

(3) Section 66 does not—

(a) apply to liability which is excluded or discharged as mentioned in
40section 4(2)(a) (exception to liability to pay damages to relatives) of the
Damages (Scotland) Act 2011, or

(b) affect the operation of section 5 (discharge of liability to pay damages:
exception for mesothelioma) of that Act.

(4) Section 66 does not apply to the liability of an occupier of premises to a person
who obtains access to the premises for recreational purposes if—

(a) the person suffers loss or damage because of the dangerous state of the
premises, and

(b) 5allowing the person access for those purposes is not within the
purposes of the occupier’s trade, business, craft or profession.

68 Effect of an unfair term on the rest of a contract

Where a term of a consumer contract is not binding on the consumer as a result
of this Part, the contract continues, so far as practicable, to have effect in every
10other respect.

69 Requirement for transparency

(1) A trader must ensure that a written term of a consumer contract, or a consumer
notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is
15expressed in plain and intelligible language and it is legible.

70 Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different
meanings, the meaning that is most favourable to the consumer is to prevail.

(2) Subsection (1) does not apply to the construction of a term or a notice in
20proceedings on an application for an injunction or interdict under paragraph 3
of Schedule 3.

How are the general rules enforced?

71 Enforcement of the law on unfair contract terms

(1) Schedule 3 confers functions on the Competition and Markets Authority and
25other regulators in relation to the enforcement of this Part.

(2) For provision about the investigatory powers that are available to those
regulators for the purposes of that Schedule, see Schedule 5.

Supplementary provisions

72 Duty of court to consider fairness of term

(1) 30Subsection (2) applies to proceedings before a court which relate to a term of a
consumer contract.

(2) The court must consider whether the term is fair even if none of the parties to
the proceedings has raised that issue or indicated that it intends to raise it.

(3) But subsection (2) does not apply unless the court considers that it has before
35it sufficient legal and factual material to enable it to consider the fairness of the
term.

73 Application of rules to secondary contracts

(1) This section applies if a term of a contract (“the secondary contract”) reduces
the rights or remedies or increases the obligations of a person under another
contract (“the main contract”).

(2) 5The term is subject to the provisions of this Part that would apply to the term
if it were in the main contract.

(3) It does not matter for the purposes of this section—

(a) whether the parties to the secondary contract are the same as the parties
to the main contract, or

(b) 10whether the secondary contract is a consumer contract.

(4) This section does not apply if the secondary contract is a settlement of a claim
arising under the main contract.

74 Disapplication of rules to mandatory terms and notices

(1) This Part does not apply to a term of a contract, or to a notice, to the extent that
15it reflects—

(a) mandatory statutory or regulatory provisions, or

(b) the provisions or principles of an international convention to which the
United Kingdom or the EU is a party.

(2) In subsection (1) “mandatory statutory or regulatory provisions” includes rules
20which, according to law, apply between the parties on the basis that no other
arrangements have been established.

75 Contracts applying law of non-EEA State

(1) If—

(a) the law of a country or territory other than an EEA State is chosen by
25the parties to be applicable to a consumer contract, but

(b) the consumer contract has a close connection with the United Kingdom,

this Part applies despite that choice.

(2) For cases where the law applicable has not been chosen or the law of an EEA
State is chosen, see Regulation (EC) No. 593/2008 of the European Parliament
30and of the Council of 17 June 2008 on the law applicable to contractual
obligations.

76 Changes to other legislation

Schedule 4 (amendments consequential on this Part) has effect.

77 Interpretation of Part 2

(1) 35In this Part—

• “consumer contract” has the meaning given by section 62(3);

• “consumer notice” has the meaning given by section 62(7);

• “transparent” is to be construed in accordance with sections 65(3) and
  69(2).

(2) 40The following have the same meanings in this Part as they have in Part 1—

Consumer Rights BillPage 43

• “trader” (see section 2(2));

• “consumer” (see section 2(3));

• “goods” (see section 2(8));

• “digital content” (see section 2(9)).

(3) 5Section 2(4) (trader who claims an individual is not a consumer must prove it)
applies in relation to this Part as it applies in relation to Part 1.

Part 3 Miscellaneous and General

CHAPTER 1 Enforcement etc.

78 10Investigatory powers etc

(1) Schedule 5 (investigatory powers etc) has effect.

(2) Schedule 6 (investigatory powers: consequential amendments) has effect.

79 Amendment of weights and measures legislation regarding unwrapped bread

(1) In the Weights and Measures (Packaged Goods) Regulations 2006 (S.I. 2006/
15659), Schedule 5 (application to bread) is amended in accordance with
subsections (2) and (3).

(2) For paragraph 9 substitute—

“9 Regulation 9(1)(b)(ii) (duty to keep records) does not apply to bread
which is sold unwrapped or in open packs.”

(3) 20After paragraph 13 insert—

“Transitional provision

14 (1) Regulation 9(1)(b)(ii) (duty to keep records) does not apply to a
packer who holds a notice of exemption which is in force.

(2) A “notice of exemption” means a notice issued under paragraph 9 as
25it stood before section 79 of the Consumer Rights Act 2014 came into
force.”

(4) The use of this Act to make amendments to the Weights and Measures
(Packaged Goods) Regulations 2006 has no effect on the availability of any
power in the Weights and Measures Act 1985 to amend or revoke those
30Regulations, including the provision substituted by subsection (2) and that
inserted by subsection (3).

(5) In the Weights and Measures (Packaged Goods) Regulations (Northern
Ireland) 2011 (SR 2011/331SR 2011/331), Schedule 5 (application to bread) is amended in
accordance with subsections (6) and (7).

(6) 35For paragraph 9 substitute—

“9 Regulation 9(1)(b)(ii) (duty to keep records) does not apply to bread
which is sold unwrapped or in open packets.”

(7) After paragraph 13 insert—

“Transitional provision

14 (1) Regulation 9(1)(b)(ii) (duty to keep records) does not apply to a
packer who holds a notice of exemption which is in force.

(2) 5A “notice of exemption” means a notice issued under paragraph 9 as
it stood before section 79 of the Consumer Rights Act 2014 came into
force.”

(8) The use of this Act to make amendments to the Weights and Measures
(Packaged Goods) Regulations (Northern Ireland) 2011 has no effect on the
10availability of any power in the Weights and Measures (Northern Ireland)
Order 1981 (SI 1981/231 (NI 10)SI 1981/231 (NI 10)) to amend or revoke those Regulations,
including the provision substituted by subsection (6) and that inserted by
subsection (7).

80 Enterprise Act 2002: enhanced consumer measures and other enforcement

(1) 15Schedule 7 contains amendments of Part 8 of the Enterprise Act 2002
(enforcement of certain consumer legislation).

(2) The amendments have effect only in relation to conduct which occurs, or which
is likely to occur, after the commencement of this section.

81 Contravention of code regulating premium rate services

(1) 20In section 120(3) of the Communications Act 2003 (conditions under section 120
must require compliance with directions given in accordance with an
approved code or with an order under section 122) before paragraph (a)
insert—

“(za) the provisions of an approved code;”.

(2) 25In section 121(5) of that Act (provision about enforcement that may be made by
approved code) after paragraph (a) insert—

“(aa) provision that applies where there is or has been more than one
contravention of the code or directions given in accordance with
it by a person and which enables—

(i) 30a single penalty (which does not exceed that maximum
penalty) to be imposed on the person in respect of all of
those contraventions, or

(ii) separate penalties (each of which does not exceed that
maximum penalty) to be imposed on the person in
35respect of each of those contraventions,

according to whether the person imposing the penalty
determines that a single penalty or separate penalties are
appropriate and proportionate to those contraventions;”.

(3) Section 123 of that Act (enforcement by OFCOM of conditions under section
40120) is amended as follows.

(4) After subsection (1) insert—

“(1A) Subsection (1B) applies where a notification under section 94 as applied
by this section relates to more than one contravention of—

(a) a code approved under section 121,

(b) directions given in accordance with such a code, or

(c) an order under section 122.

(1B) Section 96(3) as applied by this section enables OFCOM to impose—

(a) 5a single penalty in respect of all of those contraventions, or

(b) separate penalties in respect of each of those contraventions,

according to whether OFCOM determine that a single penalty or
separate penalties are appropriate and proportionate to those
contraventions.”

(5) 10In subsection (2) (maximum amount of penalty) for “the penalty” substitute
“each penalty”.

CHAPTER 2 Competition

82 Private actions in competition law

Schedule 8 (private actions in competition law) has effect.

CHAPTER 3 15Duty of letting agents to publicise fees etc

83 Duty of letting agents to publicise fees etc

(1) A letting agent must, in accordance with this section, publicise details of the
agent’s relevant fees.

(2) The agent must display a list of the fees—

(a) 20at each of the agent’s premises at which the agent deals face-to-face
with persons using or proposing to use services to which the fees relate,
and

(b) at a place in each of those premises at which the list is likely to be seen
by such persons.

(3) 25The agent must publish a list of the fees on the agent’s website (if it has a
website).

(4) A list of fees displayed or published in accordance with subsection (2) or (3)
must include—

(a) a description of each fee that is sufficient to enable a person who is
30liable to pay it to understand the service or cost that is covered by the
fee or the purpose for which it is imposed (as the case may be),

(b) in the case of a fee which tenants are liable to pay, an indication of
whether the fee relates to each dwelling-house or each tenant under a
tenancy of the dwelling-house, and

(c) 35the amount of each fee inclusive of any applicable tax or, where the
amount of a fee cannot reasonably be determined in advance, a
description of how that fee is calculated.

(5) Subsections (6) and (7) apply to a letting agent engaging in letting agency or
property management work in relation to dwelling-houses in England.

(6) If the agent holds money on behalf of persons to whom the agent provides
services as part of that work, the duty imposed on the agent by subsection (2)
5or (3) includes a duty to display or publish, with the list of fees, a statement of
whether the agent is a member of a client money protection scheme.

(7) If the agent is required to be a member of a redress scheme for dealing with
complaints in connection with that work, the duty imposed on the agent by
subsection (2) or (3) includes a duty to display or publish, with the list of fees,
10a statement—

(a) that indicates that the agent is a member of a redress scheme, and

(b) that gives the name of the scheme.

(8) The appropriate national authority may by regulations specify—

(a) other ways in which a letting agent must publicise details of the
15relevant fees charged by the agent or (where applicable) a statement
within subsection (6) or (7);

(b) the details that must be given of fees publicised in that way.

(9) In this section—

• “client money protection scheme” means a scheme which enables a
  20person on whose behalf a letting agent holds money to be compensated
  if all or part of that money is not repaid to that person in circumstances
  where the scheme applies;

• “redress scheme” means a redress scheme for which provision is made by
  order under section 83 or 84 of the Enterprise and Regulatory Reform
  25Act 2013.

84 Letting agents to which the duty applies

(1) In this Chapter “letting agent” means a person who engages in letting agency
work (whether or not that person engages in other work).

(2) A person is not a letting agent for the purposes of this Chapter if the person
30engages in letting agency work in the course of that person’s employment
under a contract of employment.

(3) A person is not a letting agent for the purposes of this Chapter if—

(a) the person is of a description specified in regulations made by the
appropriate national authority;

(b) 35the person engages in work of a description specified in regulations
made by the appropriate national authority.

85 Fees to which the duty applies

(1) In this Chapter “relevant fees”, in relation to a letting agent, means the fees,
charges or penalties (however expressed) payable to the agent by a landlord or
40tenant—

(a) in respect of letting agency work carried on by the agent,

(b) in respect of property management work carried on by the agent, or

(c) otherwise in connection with—

(i) an assured tenancy of a dwelling-house, or

(ii) a dwelling-house that is, has been or is proposed to be let under
an assured tenancy.

(2) Subsection (1) does not apply to—

(a) the rent payable to a landlord under a tenancy,

(b) 5any fees, charges or penalties which the letting agent receives from a
landlord under a tenancy on behalf of another person,

(c) a tenancy deposit within the meaning of section 212(8) of the Housing
Act 2004, or

(d) any fees, charges or penalties of a description specified in regulations
10made by the appropriate national authority.

86 Letting agency work and property management work

(1) In this Chapter “letting agency work” means things done by a person in the
course of a business in response to instructions received from—

(a) a person (“a prospective landlord”) seeking to find another person
15wishing to rent a dwelling-house under an assured tenancy and,
having found such a person, to grant such a tenancy, or

(b) a person (“a prospective tenant”) seeking to find a dwelling-house to
rent under an assured tenancy and, having found such a dwelling-
house, to obtain such a tenancy of it.

(2) 20But “letting agency work” does not include any of the following things when
done by a person who does nothing else within subsection (1)—

(a) publishing advertisements or disseminating information;

(b) providing a means by which a prospective landlord or a prospective
tenant can, in response to an advertisement or dissemination of
25information, make direct contact with a prospective tenant or a
prospective landlord;

(c) providing a means by which a prospective landlord and a prospective
tenant can communicate directly with each other.

(3) “Letting agency work” also does not include things done by a local authority.

(4) 30In this Chapter “property management work”, in relation to a letting agent,
means things done by the agent in the course of a business in response to
instructions received from another person where—

(a) that person wishes the agent to arrange services, repairs, maintenance,
improvements or insurance in respect of, or to deal with any other
35aspect of the management of, premises on the person’s behalf, and

(b) the premises consist of a dwelling-house let under an assured tenancy.

87 Enforcement of the duty

(1) It is the duty of every local weights and measures authority in England and
Wales to enforce the provisions of this Chapter in its area.

(2) 40If a letting agent breaches the duty in section 83(3) (duty to publish list of fees
etc on agent’s website), that breach is taken to have occurred in each area of a
local weights and measures authority in England and Wales in which a
dwelling-house to which the fees relate is located.

(3) Where a local weights and measures authority in England and Wales is
45satisfied on the balance of probabilities that a letting agent has breached a duty

imposed by or under section 83, the authority may impose a financial penalty
on the agent in respect of that breach.

(4) A local weights and measures authority in England and Wales may impose a
penalty under this section in respect of a breach which occurs in England and
5Wales but outside that authority’s area (as well as in respect of a breach which
occurs within that area).

(5) But a local weight and measures authority in England and Wales may impose
a penalty in respect of a breach which occurs outside its area and in the area of
a local weights and measures authority in Wales only if it has obtained the
10consent of that authority.

(6) Only one penalty under this section may be imposed on the same letting agent
in respect of the same breach.

(7) The amount of a financial penalty imposed under this section—

(a) may be such as the authority imposing it determines, but

(b) 15must not exceed £5,000.

(8) Schedule 9 (procedure for and appeals against financial penalties) has effect.

(9) A local weights and measures authority in England must have regard to any
guidance issued by the Secretary of State about—

(a) compliance by letting agents with duties imposed by or under section
2083;

(b) the exercise of its functions under this section or Schedule 9.

(10) A local weights and measures authority in Wales must have regard to any
guidance issued by the Welsh Ministers about—

(a) compliance by letting agents with duties imposed by or under section
2583;

(b) the exercise of its functions under this section or Schedule 9.

(11) The Secretary of State may by regulations made by statutory instrument—

(a) amend any of the provisions of this section or Schedule 9 in their
application in relation to local weights and measures authorities in
30England;

(b) make consequential amendments to Schedule 5 in its application in
relation to such authorities.

(12) The Welsh Ministers may by regulations made by statutory instrument—

(a) amend any of the provisions of this section or Schedule 9 in their
35application in relation to local weights and measures authorities in
Wales;

(b) make consequential amendments to Schedule 5 in its application in
relation to such authorities.

88 Supplementary provisions

(1) 40In this Chapter—

• “the appropriate national authority” means—

  (a)

  in relation to England, the Secretary of State, and

  (b)

  in relation to Wales, the Welsh Ministers;

• “assured tenancy” means a tenancy which is an assured tenancy for the
  45purposes of the Housing Act 1988 except where—

  Consumer Rights BillPage 49

  (a)

  the landlord is—

  (i)

  a private registered provider of social housing,

  (ii)

  a registered social landlord, or

  (iii)

  a fully mutual housing association, or

  (b)

  5the tenancy is a long lease;

• “dwelling-house” may be a house or part of a house;

• “fully mutual housing association” has the same meaning as in Part 1 of
  the Housing Associations Act 1985 (see section 1(1) and (2) of that Act);

• “landlord” includes a person who proposes to be a landlord under a
  10tenancy and a person who has ceased to be a landlord under a tenancy
  because the tenancy has come to an end;

• “long lease” means a lease which—

  (a)

  is a long lease for the purposes of Chapter 1 of Part 1 of the
  Leasehold Reform, Housing and Urban Development Act 1993,
  15or

  (b)

  in the case of a shared ownership lease (within the meaning
  given by section 7(7) of that Act), would be a lease within
  paragraph (a) of this definition if the tenant’s total share (within
  the meaning given by that section) were 100%;

• 20“registered social landlord” means a body registered as a social landlord
  under Chapter 1 of Part 1 of the Housing Act 1996;

• “tenant” includes a person who proposes to be a tenant under a tenancy
  and a person who has ceased to be a tenant under a tenancy because the
  tenancy has come to an end.

(2) 25In this Chapter “local authority” means—

(a) a county council,

(b) a county borough council,

(c) a district council,

(d) a London borough council,

(e) 30the Common Council of the City of London in its capacity as local
authority, or

(f) the Council of the Isles of Scilly.

(3) References in this Chapter to a tenancy include a proposed tenancy and a
tenancy that has come to an end.

(4) 35References in this Chapter to anything which is payable, or which a person is
liable to pay, to a letting agent include anything that the letting agent claims a
person is liable to pay, regardless of whether the person is in fact liable to pay
it.

(5) Regulations under this Chapter are to be made by statutory instrument.

(6) 40A statutory instrument containing (whether alone or with other provision)
regulations made by the Secretary of State under section 87(11) is not to be
made unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

(7) A statutory instrument containing (whether alone or with other provision)
45regulations made by the Welsh Ministers under section 87(12) is not to be made
unless a draft of the instrument has been laid before, and approved by a
resolution of, the National Assembly for Wales.