Business, Innovation and SkillsWritten evidence submitted by Alan Moss


1. My name is Alan Moss.

2. I am a Trading Standards officer responding in my personal capacity.

3. I regularly deal with consumers and businesses on issues that will be affected by the Bill. I feel it worth responding because this law is a significant one that will affect every person every time they buy something—this is probably going to be the last time these laws are looked at for 40–50 years so we need to get it right—I have a number of concerns.

4. It is worth bearing in mind that these changes are being made at a time when public funding to support consumers is falling year on year with Trading Standards and other consumer organisations reducing in size and reducing the support that is being offered to consumers. Therefore it is more important than ever that consumers have stronger and easier to understand rights and that Trading Standards have the tools they need to do their job, rather than having barriers placed in their way (in reference to enforcement powers).

Structure of the Law and Wording

5. It is clear from the consultations leading up to the publishing of the Bill that the Government understands that the law leads to be clearer for consumers to understand. As I have alluded to, this is largely because in future there will be less support from consumers organisations, therefore consumers will have to do their own reading and research.

6. It is very disappointing that the new incoming law for aggressive and misleading practices is not being introduced via this Bill. One of the main points made during consultation was that legislation should be easy for consumers to understand and access. Surely it makes sense to have all major consumer law in one single piece of legislation rather than spread over multiple pieces of law. Worse still I understand that these new rights will be introduced by amending the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR)—whilst this may make sense because the rights will closely mirror some of the provisions in the CPUTR it is a bad idea for a number of reasons:

(a)The CPUTR is public law enforced by trading Standards—adding in civil remedies for consumers will make the legislation complex for consumers to understand—there is generally no need for a consumer to read the CPUTR. Their new rights should be in separate legislation. My experience of Government amendments to existing legislation is that they usually end up difficult to understand—the Consumer Credit Act 1974 is a perfect example.

(b)Many guidance leaflets/websites already exist for the CPUTR in their current form—these amendments will affect that guidance and will cause confusion if read when the law has been amended.

(c)The CPUTR mirror EU law. The new parts will be UK law and I fear that it will all become very complex. For example, the new rights will be introduced in 2013 or 2014 yet the law will still be titled with 2008—this alone might confuse consumers.

(d)Having seen the new draft CPUTR regulations it is quite clear things will get very complex and messy as they are not easy to follow.

7. In addition, I understand that the new laws implementing the Consumer Right Directive—implementing the right to cancel for distance and off trade premise contracts—will be introduced in separate legislation. Again my view is that all of this should be incorporated into one law. I understand these EU laws need to be implemented by a deadline—but can we not have a Consumer Rights Act that enters into force in stages—that part could become active first whilst the rest of it is introduced when appropriate.

8. Schedule 5 relates to the enforcement powers Trading Standards have—I am unsure why this is in a schedule—why is it not a part of the main text? I think that these powers should be introduced in their own law—for example Trading Standards (Powers) Act 2014. There is a simple reason for this. When I am explaining to a business where my powers come from I just point them to the relevant section of the law (eg Regulation 21 of the CPUTR). In future I will have to explain I am using my powers under the CPUTR but point them to Schedule 5 of the Consumer Rights Act—it will take some explaining. Having the legislation in a smaller self contained appropriately named law makes sense. One of the reasons these powers are being consolidated is to make it easier for businesses to understand the powers but I feel the way it is set up at the moment will make it harder to understand what is going on.

9. There are a couple of schedules that amend existing law. Why can these not be in one schedule? In addition, my view is that the Act when complete should be as easy to read/print as possible. Do we need all of these amendments within the main Consumer Rights Act? Once they amend the old law the text is effectively useless. Why can these amendments not be introduced by separate legislation which stands alone? That will allow the Consumer Bill of Rights to be much shorter and only contain the parts relevant to consumers.

10. In any event the main text of the law should be at the front whilst any non relevant stuff like amending text should be at the back (similar to the CPUTR).

Simplicity of the Law

11. As mentioned, the Government have clearly identified that the law should be easy for consumers to understand and this has been reflected in the draft Bill worded in a way that is much easier to understand than older legislation.

12. I feel the simplified language starts off well but some parts are not so easy to understand—I have commented on particular areas below.

13. I don’t see why Paragraph 60 concerning Interpretation cannot be incorporated into the Definitions at the start (paragraph 2).

14. The supplementary provisions should all be right at the back (eg the numerous paragraphs that bring Schedules into force—do they need to be spread all over the legislation? Why not just clump them together at the back and out of the way.

15. Can I also suggest the website is updated to show the amended (old) law straight away, otherwise we will have many confused people trying to work out what the law is if they are looking for an old/new version.

16. Where days are mentioned should they not be working days? As you could have a situation whereby the shop is closed on the day the customer wants to do something—in which case can the rights not extend to the next working day or day the shop is open?. This might be different to the rules on doorstep and distance selling cancellation which I believe are calendar days.

17. BIS (or some other body) should be required to produce a comprehensive guidance leaflet explaining the law in depth so consumers and businesses can understand it. There should also be a website similar to the Sale of Goods and Distance Selling Hub.


18. Paragraph 1(1)—perhaps you could have a separate line for goods, digital and services explaining that Part 1 applies to all of them. Although the way you have done it uses the least words it is not the easiest to understand.

19. Paragraph 1(6)—this is not very clear and could do with further explanation. One might ask why the rules from the Sale of Goods Act 1979 cannot be incorporated in full into this Act (where they relate to consumers—rather than requiring consumers to consult two pieces of law.

20. Does the definition of trader include local authorities, charities and other non profit organisations? I supposed it did include local authorities and this was confirmed in a totally different part (paragraph 60). Regarding the other types of organisations it would be helpful to have clarity from the start.

21. Paragraph 2(5) and 2(6) are a bit complicated to understand (in reference to auction sales). Could the wording be clarified?

22. Paragraph 3(2)(d)—this part relating to deeds is not easy to understand.

23. Paragraphs 3 (5), 3(6) and 3(7)—again, not easy to understand.

24. Paragraph 6(4)—presumably refers to a conditional sale—it is not very clear.

25. What is a purchase by gift card—a sale or a transfer? What about when you use a voucher from a group buying site—it is consideration but is it money?

26. The definition of credit broker comes later in the legislation—it is worth making a reference to it within section 9 where it is first mentioned—this would make it easier for a consumer who is reading the law in the order it is written to understand key definitions.

27. Paragraph 10(4)—this is a bit vague for the average member of the public. If the CRD is being implemented in other law then this section should mention it.

28. Paragraph 13—we regularly deal with complaints from elderly people who have been pressure sold mobility aids in their home and then find that the item is not as nice/soft/comfortable as the one they were shown. Can traders be forced to put this part in writing so that we can be sure the consumer is aware? When the new Doorstep Selling Regulations come in this might be less of an issue as consumers will have more rights to cancel (ie the right to cancel will exist after the goods have been delivered whereas now the rights can end before delivery).

29. Paragraph 14—how would this effect carpet sales where the carpet shop often says although they gave the installers number a separate contract was formed with the consumer and installer directly. In this case would the installation be at the carpet shops responsibility unless they made it clear the consumer is going to enter a separate contract?

30. Paragraph 18—this is a Section that will be referred to many times by advisors and consumers. I feel that it is overly complex. Perhaps rather than trying to group various breaches together it would be easier to have separate lines for a breach of each section—the way it is worded now probably tries to explain things using the least amount of words but it is not the easiest to decipher.

31. Paragraph 18(8)—why can the six month rule not be extended to the right to reject? Would make things simpler and seems inconsistent. I understand that this is an EU rule but there is no reason why it cannot be extended to the right to reject.

32. Paragraph 19—Can we put a time limit in for the refund to be made? 19 (4) which refers to the customer making the goods available to be picked up often leads to a stalemate where the trader doesn’t pick the item up and no refund is made.

33. Paragraph 21—the “time limit” period is too short and should be closer to 10 days—faults are not always evident that quickly. Especially for complex items like cars.

34. Paragraph 21(6)—why does the waiting period end before the consumer receives the goods? It should on the day the consumer receives the goods back or the next day.

35. If these are not implied terms what will they be referred to? Terms included by custom seems odd and inaccurate. The use of implied terms wasn’t perfect but this doesn’t seem to be any clearer.

36. A very common problem we have is traders trying to force consumers to “accept” on delivery or within a certain number of days (usually 2) after delivery—please can you make it more explicit that this is not allowed. They way it is currently worded suggests the consumer can do something (ie not tell the trader within 2 days they are not rejecting the goods) to be an action of acceptance.

37. Section 23—repair/replacement—This implies the consumer can choose between a repair or replacement but in fact the power is with the trader to offer whatever they want as long as they can argue it is disproportionate to do the other.

38. Section 24—I can foresee problems with people arguing the toss over second hand values but it is better than nothing I suppose.

Digital Content

39. My only concern is that much content is purchase from abroad so consumers may not have the protection they think they do most of the time.


40. Can services not be defined? I can understand the argument against but not every consumer will necessarily understand what a service is. There is a risk that any definition could be too restrictive.

41. There should be scope for a consumer not to accept a repair if the first job was very poor and the consumer has “lost faith” in the trader—this is very common. For example, if an incompetent person installs a boiler the consumer usually does not want them back.

42. There should also be an automatic right to a full refund if the work has not been done with reasonable care and skill—the right to consequential losses should also be made clear within the legislation.

43. I don’t think this Part properly covers the example given in the BIS consultation—ie when a mobile phone service is down for a month. There should be a section that gives right to price reduction for “lack of service” as opposed to the service not being provided with reasonable care and skill—they are two different things. At the moment a consumer suffering such a problem has very little recourse.

44. I also think you are missing a massive opportunity to give consumers the right to cancel a contract when the provider has not provided the service for a certain period of time (as per 6.102 in the BIS consultation). Would this not fall in line with the Governments view that decent businesses should flourish whereas poor providers should not be able to benefit when they are not delivering what they say they will?

45. This whole section seems to be repeating what already exists without introducing badly needed new rights.

Unfair Terms

46. There should be something to ensure that key terms are drawn to the consumers attention before the contract is made as it is a common technique used by businesses to hide things in the small print.

47. Paragraph 71—there could be disputes over whether a term was drawn to the consumer’s attention.

48. Schedule 3—Paragraph 2—it seems onerous to have to inform the CMA if you are merely goiong to be considering a complaint. Surely you would only notify them if you have decided you want to take some action on a complaint.

Trading Standards Powers (Schedule 5)

49. As mentioned I think these powers should be set out in their own legislation for the sake of simplicity (eg Trading Standards (powers) Act 2014).

50. The mantra appears to be to continually “reduce the burdens on business” but put all of the burdens on Trading Standards—with all the reductions in budgets the more barriers that are put up the more likely less work being done and TS departments opting to do other things rather than waste time and effort trying to comply with these barriers.

51. When the Coalition Government came in they changed the Regulation of Investigatory Powers Act 2000 to require Trading Standards to go to the magistrates court for approval—that may sound great but have they considered all of the issues that we now don’t bother dealing with because the requirements are so onerous?

52. This entire Schedule is horribly complex and I can barely understand it– how is a business supposed to? It might consolidate powers but I am not sure it simplifies them.

53. Generally speaking whereas the powers currently within each piece of law are easy to follow I feel that this Bill is far more complex—there are many restrictions which means that you have to read multiple parts to see which powers you can use under which scenario.

54. I think that things would be clearer if there was one part that explained what powers Trading Standards have, one part that explained what powers the CMA have and so on—the current wording might use the least text but it is difficult to understand.

55. Paragraphs 7 and 8—very difficult to understand—there must be a better way to set out what powers and restrictions each type of enforcer has/is subject to.

56. Paragraph 11—could the table not be clearer like it is in Paragraph 12?

57. It is also disappointing that the Government cannot bring in ALL of the powers that TS Officers have (ie food powers are not included). So a food business may be subject to 2 sets of powers.

With regards to the actual powers, my comments are:

58. Paragraph 15—gives Trading Standards officers (TSO) to enter premises to observe—but it is restricted to public areas. What if we want to observe what goes on in a call centre or some other restricted area?

59. Under the Consumer Protection from Unfair Trading Regulations 2008 (aka CPUTR and one of the main Trading Standards laws) Regulation 21 allows us to enter (any part) of a premises (ie not public parts like calls centres) to ascertain whether the Regulations are being complied with.

60. Paragraph 20 of this Bill requires notice to be given when we want to access non public parts of the premise—this is a significant weakening of powers. It is also unclear what happens if you enter a public part of the building but then suspect the law is not being complied with—presumably you can then bypass the requirement to give notice using one of the reasons under 20(5)—for example 2(5)(b)—reasonable cause to suspect a breach.

61. Paragraph 16—this appears to replace the Section 225 Notice under the Enterprise Act 2002 which allowed us to ask for extensive information when deciding whether to take civil proceedings under the Enterprise Act. It has now been extended to allow the information to be used for criminal proceedings—according to the guidance notes issued with the Bill (page61).

62. In our authority we hardly ever used these powers (s225 of the EA 2002) for a number of reasons—one of them was that our legal team took the view that if we made a request and the person did not comply we would have to go to court (which costs time/money). In addition we only ever used the notices when we were absolutely sure that we were taking EA action (which was hardly ever) and we didn’t want to restrict ourselves to civil proceedings so we used powers under the CPUTR which can be used for civil or criminal proceedings.

63. It has to be borne in mind that when we use our powers we are not always looking to take a criminal prosecution or civil action. It is to investigate a breach and decide what to do—which may just be a warning. Therefore we didn’t usually risk using our EA Section 225 Notice powers because in those cases where we knew we would probably not take enforcement action we didn’t want to risk using the powers. My view was that we don’t have to apply to the court to have the notice enforced by it was our legal teams view—so as I have mentioned the powers were almost never used.

64. I note that Paragraph 16 now incorporates the information gathering powers that were in Regulation 21 of the CPUTR. This means that if we want to make remote requests for information we will now have to use Paragraph 16.

65. It is good that we can now apply to a court if the subject refuses to comply (something we couldn’t do under CPUTR).

66. Paragraph 19 (4)—states that any information cannot be used in criminal proceedings. So if for example I request pricing history from a retailer and I notice that they have committed an offence based on the info provided—this part says that the evidence cannot be used against them. What is the point then? Is this an attempt to force enforcers into using civil proceedings over criminal proceedings?

67. Requirement to give notice:

68. The requirement to give notice is extremely bureaucratic.

69. How are we supposed to know when the subject has received the notice? This may delay visits by days.

70. The requirement to give notice is now going to make it harder if not impossible to carry out routine inspections in shops where you may just move from one premise to another depending on what is open and how much time you have. Now we will be required to plan visits days in advance and notify every single shop—costing us a lot of time when we already have limited resources.

71. How much time and effort should we spend trying to contact the right person to give notice to?

72. What if we cannot get in touch with the right person to give notice to? Giving notice may make it easier for the shop to evade talking to us as they will know we are coming and can say the boss is not in.

73. Please define what the officers “identity” and “authority” is. Are we expected to carry our paper warrants around? Would a suitably high quality photo ID card not do?

74. Does Parliament accept that these changes will likely lead to fewer routine inspections?

75. We also seem to be formalising the form that request have to take. Will Parliament consider situations where you might want to use your powers in an emergency when you are out and about but do not have the forms? Also bear in mind we have to comply with PACE Code B which also requires certain paperwork/info to be given.


76. Under the CPUTR we can enter any premises “other than premises used only as a dwelling”. What this means is that we can enter houses if a business is based there. This Bill says we cannot enter premises “used wholly or mainly as a dwelling”. Given that most houses (even when they have businesses in them) will be used mainly as a dwelling this is clearly a restriction on our powers.

77. I understand the Government has a bee in its bonnet about stopping Council “jobsworths” from being able to enter dwellings without warrants but I would still make the following points.

78. In my Authority we would always seek a warrant when entering a domestic property if it is a pre planned operation.

79. More and more businesses are now being operated from domestic dwellings.

80. We will never be able to state or know whether a dwelling is being used wholly or mainly for business purposes so will always have to obtain a warrant.

81. There may be limited cases where we need to enter a property in an emergency (not due to health risk but to prevent movement of goods or destruction of evidence) and will no longer have the power to do so. For example, I once visited someone who appeared to be operating a scam from his home. When I attended he became defensive on the doorstep and I was able to make him let me in to look at paperwork. Under this new law I would have to leave.

82. There may also be cases where we are invited to someone’s home (also a business premises) and during the meeting we need to seize documents and they ask us to leave—what are we supposed to do then?

83. Therefore I think there is a case to leave the law as it is.

84. Paragraph 22 (1) says we can require documents from a person occupying the premises that we have entered using powers under Paragraph 21—but what if we are not on the traders premises—for example we are dealing with rogue traders in a consumers house/street or we are dealing with a street seller?

85. Paragraph 27 is presumably dependent on Paragraph 22—ie we can only seize documents on premises we have entered using powers under Paragraph 21?

86. It is unclear how we can remotely (by email or letter) request information from a business which may then be used against them in a prosecution.


87. It is disappointing that the punishment for the offence of obstruction has been lowered from £5,000 under CPUTR to £3,000—I note that no mention is made of the fact that the punishment is being lowered in the guidance notes issued with the Bill. I don’t understand the logic for this as surely the punishment for obstruction should be higher than the punishment for the actual offence.

88. I am aware of an example recently whereby a TS department wanted to obtain information from a third party that refused. He was prosecuted and got a 200 hour community sentence. Because of the obstruction the original offender got away as the time limit for prosecution had passed. This is unacceptable.

89. I note that in the BIS consultation it is suggested that because there have not been many prosecutions for obstruction it probably doesn’t happen much. I would disagree—we are obstructed regularly but we would probably only ever consider formal action if the obstruction was holding up a major case or there was some form of physical obstruction/aggression. Much of the obstruction comes from businesses delaying providing information and I would like to see the legislation come down harder on such delays.

90. Paragraph 17(8) and 22 (10)—I am aware of a number of issues recently with no lawyers claiming to be legal advisors and refusing to provide information—can this be clarified and restricted to lawyers?


91. Why can the new rules for redress not be included for criminal prosecutions? There seems to be an assumption that these new rules will encourage TS departments to take on more civil cases but I doubt that—many departments do not have the staff/skills to be taking on civil cases and I am aware that some departments have a general policy of not even bothering to think about doing civil injunctions.

92. One of the reasons I think nay people shy away from EA action is because there is no punishment for the “offender”. In my view two positive steps could be taken.

(A)if a trader refuses to provide an undertaking they should have the threat of a fine if the regulator has to take them to court and the court thinks it was unreasonable of the trader not to give an undertaking. This would be in addition to costs.

(B)Successful EA actions should automatically include some form of punishment so that they are inline with prosecutions.

I note that the Government has decided not to proceed with ensuring TS departments can take on civil cases themselves (without paying for solicitors/barristers)—so it will hardly be surprising if no TS department bothers themselves.

18 August 2013

Prepared 20th December 2013