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Consumer Credit Bill


Consumer Credit Bill

41

 

(b)   

for ‘information on oath’ there is substituted ‘evidence on

oath’.

(6)   

In the application of this section to Northern Ireland the reference to a

justice of the peace shall be construed as a reference to a lay magistrate.”

49      

Failure to comply with information requirement

5

After section 36D of the 1974 Act (inserted by section 48 of this Act) insert—

“36E    

Failure to comply with information requirement

(1)   

If on an application made by the OFT it appears to the court that a

person (the ‘information defaulter’) has failed to do something that he

was required to do by virtue of section 36B or 36C, the court may make

10

an order under this section.

(2)   

An order under this section may require the information defaulter—

(a)   

to do the thing that it appears he failed to do within such period

as may be specified in the order;

(b)   

otherwise to take such steps to remedy the consequences of the

15

failure as may be so specified.

(3)   

If the information defaulter is a body corporate, a partnership or an

unincorporated body of persons which is not a partnership, the order

may require any officer who is (wholly or partly) responsible for the

failure to meet such costs of the application as are specified in the order.

20

(4)   

In this section—

‘court’ means—

(a)   

in England and Wales and Northern Ireland, the High

Court or the county court;

(b)   

in Scotland, the Court of Session or the sheriff;

25

‘officer’ means—

(a)   

in relation to a body corporate, a person holding a

position of director, manager or secretary of the body or

any similar position;

(b)   

in relation to a partnership or to an unincorporated

30

body of persons, a member of the partnership or body.

(5)   

In subsection (4) ‘director’ means, in relation to a body corporate whose

affairs are managed by its members, a member of the body.”

50      

Officers of enforcement authorities other than OFT

After section 36E of the 1974 Act (inserted by section 49 of this Act) insert—

35

“36F    

Officers of enforcement authorities other than OFT

(1)   

A relevant officer may only exercise powers by virtue of section 36C or

36D in pursuance of arrangements made with the OFT by or on behalf

of the enforcement authority of which he is an officer.

(2)   

Anything done or omitted to be done by, or in relation to, a relevant

40

officer in the exercise or purported exercise of a power by virtue of

section 36C or 36D shall be treated for all purposes as having been done

or omitted to be done by, or in relation to, an officer of the OFT.

 
 

Consumer Credit Bill

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(3)   

Subsection (2) does not apply for the purposes of any criminal

proceedings brought against a relevant officer or the enforcement

authority of which he is an officer in respect of anything done or

omitted to be done by the officer.

(4)   

A relevant officer shall not disclose to a person other than the OFT

5

information obtained by his exercise of a power by virtue of section 36C

or 36D unless—

(a)   

he has the approval of the OFT to do so; or

(b)   

he is under a duty to make the disclosure.

(5)   

In this section ‘relevant officer’ means an officer of an enforcement

10

authority other than the OFT.”

51      

Consequential amendments relating to information

(1)   

For section 7 of the 1974 Act (penalty for false information) substitute—

“7      

Penalty for false information

A person commits an offence if, for the purposes of, or in connection

15

with, any requirement imposed or other provision made by or under

this Act, he knowingly or recklessly gives information to the OFT, or to

an officer of the OFT, which, in a material particular, is false or

misleading.”

(2)   

In subsection (1)(b)(ii) of section 162 of that Act (powers of entry and

20

inspection) for the words from “recorded” onwards substitute “to provide him

with that information;”.

(3)   

At the end of that section insert—

“(8)   

References in this section to a breach of any provision of or under this

Act do not include references to—

25

(a)   

a failure to comply with a requirement imposed under section

33A or 33B;

(b)   

a failure to comply with section 36A; or

(c)   

a failure in relation to which the OFT can apply for an order

under section 36E.”

30

(4)   

In section 165 of that Act (obstruction of authorised officers) after subsection (1)

insert—

“(1A)   

A failure to give assistance or information shall not constitute an

offence under subsection (1)(c) if it is also—

(a)   

a failure to comply with a requirement imposed under section

35

33A or 33B;

(b)   

a failure to comply with section 36A; or

(c)   

a failure in relation to which the OFT can apply for an order

under section 36E.”

(5)   

In Part 12 of that Act before section 175 insert—

40

“174A   

Powers to require provision of information or documents etc.

(1)   

Every power conferred on a relevant authority by or under this Act

(however expressed) to require the provision or production of

information or documents includes the power—

 
 

Consumer Credit Bill

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(a)   

to require information to be provided or produced in such form

as the authority may specify, including, in relation to

information recorded otherwise than in a legible form, in a

legible form;

(b)   

to take copies of, or extracts from, any documents provided or

5

produced by virtue of the exercise of the power;

(c)   

to require the person who is required to provide or produce any

information or document by virtue of the exercise of the

power—

(i)   

to state, to the best of his knowledge and belief, where

10

the information or document is;

(ii)   

to give an explanation of the information or document;

(iii)   

to secure that any information provided or produced,

whether in a document or otherwise, is verified in such

manner as may be specified by the authority;

15

(iv)   

to secure that any document provided or produced is

authenticated in such manner as may be so specified;

(d)   

to specify a time at or by which a requirement imposed by

virtue of paragraph (c) must be complied with.

(2)   

Every power conferred on a relevant authority by or under this Act

20

(however expressed) to inspect or to seize documents at any premises

includes the power to take copies of, or extracts from, any documents

inspected or seized by virtue of the exercise of the power.

(3)   

But a relevant authority has no power under this Act—

(a)   

to require another person to provide or to produce,

25

(b)   

to seize from another person, or

(c)   

to require another person to give access to premises for the

purposes of the inspection of,

   

any information or document which the other person would be entitled

to refuse to provide or produce in proceedings in the High Court on the

30

grounds of legal professional privilege or (in Scotland) in proceedings

in the Court of Session on the grounds of confidentiality of

communications.

(4)   

In subsection (3) ‘communications’ means—

(a)   

communications between a professional legal adviser and his

35

client;

(b)   

communications made in connection with or in contemplation

of legal proceedings and for the purposes of those proceedings.

(5)   

In this section ‘relevant authority’ means—

(a)   

the OFT or an enforcement authority (other than the OFT);

40

(b)   

an officer of the OFT or of an enforcement authority (other than

the OFT).”

(6)   

In section 189(1) of that Act (definitions) after the definition of “deposit”

insert—

“‘documents’ includes information recorded in any form;”.

45

(7)   

In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16)

 
 

Consumer Credit Bill

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(powers of seizure to which section 50 applies) before paragraph 19 insert—

“18A       

The power of seizure conferred by section 36D(3) of the Consumer

Credit Act 1974.”

Civil penalties

52      

Power of OFT to impose civil penalties

5

After section 39 of the 1974 Act insert—

“39A    

Power of OFT to impose civil penalties

(1)   

Where the OFT is satisfied that a person (the ‘defaulter’) has failed or is

failing to comply with a requirement imposed on him by virtue of

section 33A, 33B or 36A, it may by notice to him (a ‘penalty notice’)

10

impose on him a penalty of such amount as it thinks fit.

(2)   

The penalty notice shall—

(a)   

specify the amount of the penalty that is being imposed;

(b)   

set out the OFT’s reasons for imposing a penalty and for

specifying that amount;

15

(c)   

specify how the payment of the penalty may be made to the

OFT; and

(d)   

specify the period within which the penalty is required to be

paid.

(3)   

The amount of the penalty shall not exceed £50,000.

20

(4)   

The period specified in the penalty notice for the purposes of

subsection (2)(d) shall not end earlier than the end of the period during

which an appeal may be brought against the imposition of the penalty

under section 41.

(5)   

If the defaulter does not pay the penalty to the OFT within the period

25

so specified—

(a)   

the unpaid balance from time to time shall carry interest at the

rate for the time being specified in section 17 of the Judgments

Act 1838; and

(b)   

the penalty and any interest payable on it shall be recoverable

30

by the OFT.”

53      

Further provision relating to civil penalties

(1)   

After section 39A of the 1974 Act (inserted by section 52 of this Act) insert—

“39B    

Further provision relating to civil penalties

(1)   

Before determining to impose a penalty on a person under section 39A

35

the OFT shall give a notice to that person—

(a)   

informing him that it is minded to impose a penalty on him;

(b)   

stating the proposed amount of the penalty;

(c)   

setting out its reasons for being minded to impose a penalty on

him and for proposing that amount;

40

(d)   

setting out the proposed period for the payment of the penalty;

and

 
 

Consumer Credit Bill

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(e)   

inviting him to submit representations to it about the matters

mentioned in the preceding paragraphs in accordance with

section 34.

(2)   

In determining whether and how to exercise its powers under section

39A in relation to a person’s failure, the OFT shall have regard to

5

(amongst other things)—

(a)   

any penalty or fine that has been imposed on that person by

another body in relation to the conduct giving rise to the failure;

(b)   

other steps that the OFT has taken or might take under this Part

in relation to that conduct.

10

(3)   

General notice shall be given of the imposition of a penalty under

section 39A on a person who is a responsible person in relation to a

group licence.

(4)   

That notice shall include the matters set out in the notice imposing the

penalty in accordance with section 39A(2)(a) and (b).”

15

(2)   

In the Table in section 41 of that Act (appeals) before the entry relating to

“refusal to make order under section 40(2) in accordance with terms of

application” insert the following entry—

 

“Imposition of penalty

The person on whom the

 
 

under section 39A.

penalty is imposed.”

 

20

(3)   

In section 181 of that Act (power to alter monetary limits etc.)—

(a)   

in subsection (1) before “70(6)” insert “39A(3),”;

(b)   

in subsection (2) before “75(3)(b)” insert “39A(3),”.

54      

Statement of policy in relation to civil penalties

After section 39B of the 1974 Act (inserted by section 53 of this Act) insert—

25

“39C    

Statement of policy in relation to civil penalties

(1)   

The OFT shall prepare and publish a statement of policy in relation to

how it exercises, or how it proposes to exercise, its powers under

section 39A.

(2)   

If the OFT revises the statement of policy at any time after it has been

30

published, the OFT shall publish it as revised.

(3)   

No statement of policy shall be published without the approval of the

Secretary of State.

(4)   

The statement of policy shall be published in such manner as the OFT

thinks fit for the purpose of bringing it to the attention of those likely to

35

be affected by it.

(5)   

In preparing or revising the statement of policy the OFT shall consult

such persons as it thinks fit.

(6)   

In determining whether and how to exercise its powers under section

39A in relation to a person’s failure, the OFT shall have regard to the

40

 
 

Consumer Credit Bill

46

 

statement of policy as most recently published at the time the failure

occurred.

(7)   

The OFT shall not impose a penalty on a person under section 39A in

relation to a failure occurring before it has published a statement of

policy.”

5

Appeals

55      

The Consumer Credit Appeals Tribunal

(1)   

After section 40 of the 1974 Act insert—

“Appeals

40A     

The Consumer Credit Appeals Tribunal

10

(1)   

There shall be a tribunal known as the Consumer Credit Appeals

Tribunal (‘the Tribunal’).

(2)   

The Tribunal shall have the functions conferred on it by or under this

Part.

(3)   

The Lord Chancellor may by rules make such provision as he thinks fit

15

for regulating the conduct and disposal of appeals before the Tribunal.

(4)   

Schedule A1 (which makes provision about the Tribunal and

proceedings before it) shall have effect.

(5)   

But that Schedule does not limit the Lord Chancellor’s powers under

subsection (3).”

20

(2)   

Before Schedule 1 to that Act insert the Schedule A1 set out in Schedule 1 to this

Act.

56      

Appeals to the Consumer Credit Appeals Tribunal

(1)   

In subsection (1) of section 41 of the 1974 Act (appeals) for the words from

“prescribed period” onwards substitute “specified period, appeal to the

25

Tribunal”.

(2)   

After that subsection insert—

“(1A)   

The means for making an appeal is by sending the Tribunal a notice of

appeal.

(1B)   

The notice of appeal shall—

30

(a)   

be in the specified form;

(b)   

set out the grounds of appeal in the specified manner; and

(c)   

include the specified information and documents.

(1C)   

An appeal to the Tribunal is to be by way of a rehearing of the

determination appealed against.

35

(1D)   

In this section ‘specified’ means specified by rules under section

40A(3).”

(3)   

Subsections (2) to (5) of that section shall cease to have effect.

 
 

 
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