Consumer Credit Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Consumer Credit Bill

Consumer Credit Bill
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‘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
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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.”
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Officers of enforcement authorities other than OFT
After section 36E of the 1974 Act (inserted by section 49 of this Act) insert—
10
“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
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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.
(3)
Subsection (2) does not apply for the purposes of any criminal
proceedings brought against a relevant officer or the enforcement
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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
information obtained by his exercise of a power by virtue of section 36C
or 36D unless—
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(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
authority other than the OFT.”
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Consequential amendments relating to information
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(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
with, any requirement imposed or other provision made by or under
this Act, he knowingly or recklessly gives information to the OFT, or to
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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
inspection) for the words from “recorded” onwards substitute “to provide him
with that information;”.
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(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—
(a)
a failure to comply with a requirement imposed under section
33A or 33B;
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(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.”
(4)
In section 165 of that Act (obstruction of authorised officers) after subsection (1)
insert—
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“(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
33A or 33B;
(b)
a failure to comply with section 36A; or
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(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—
“174A
Powers to require provision of information or documents etc.
(1)
Every power conferred on a relevant authority by or under this Act
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(however expressed) to require the provision or production of
information or documents includes the power—
(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
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legible form;
(b)
to take copies of, or extracts from, any documents provided or
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
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power—
(i)
to state, to the best of his knowledge and belief, where
the information or document is;
(ii)
to give an explanation of the information or document;
(iii)
to secure that any information provided or produced,
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whether in a document or otherwise, is verified in such
manner as may be specified by the authority;
(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
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virtue of paragraph (c) must be complied with.
(2)
Every power conferred on a relevant authority by or under this Act
(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.
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(3)
But a relevant authority has no power under this Act—
(a)
to require another person to provide or to produce,

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(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
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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
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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);
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(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;”.
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(7)
In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16)
(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
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Power of OFT to impose civil penalties
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
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section 33A, 33B or 36A, it may by notice to him (a ‘penalty notice’)
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
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specifying that amount;
(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.
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(3)
The amount of the penalty shall not exceed £50,000.
(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

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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
so specified—
(a)
the unpaid balance from time to time shall carry interest at the
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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
by the OFT.”
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Further provision relating to civil penalties
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(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
the OFT shall give a notice to that person—
(a)
informing him that it is minded to impose a penalty on him;
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(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;
(d)
setting out the proposed period for the payment of the penalty;
and
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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
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(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.
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(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).”
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(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.”

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(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),”.