Financial Guidance and Claims Bill [HL]

Written evidence submitted by the Fair Telecoms Campaign (FGCB11)

New Clause 6 has been tabled, representing an utterly meaningless gesture. The proposed amendment to the terms of the Privacy and Electronic Communications Regulations, which will shortly be superseded by a new EU regulation anyway is quite minimal in its effect. It does nothing more than remove the implicit consent to receipt of unsolicited direct marketing by "live" telephone call, which is taken by a failure to register with the Telephone Preference Service. Such implicit consent does not apply to automated calls and text messages, so these are not addressed, nor affected, by the new clause.

In 2017, the ICO received 11,805 reports of unsolicited direct marketing calls about Claims Management from those already on the TPS register. This was in addition to reports of 17,112 calls and texts for which absence from the TPS register is not deemed to represent consent. All that this amendment would do is to add more cases to this total of 28,917 in a year. It is open to question about what percentage of victims report every case – I cannot believe that this approaches 1%.

In the eyes of the fair telecoms campaign, this would be just one more example, to add to many over recent years, where the terms of the PECR and the powers of the ICO have been tweaked without creating any significant impact on the problem of Nuisance Calls. It cannot, in any way, be seen to honour the government promise to cover the terms of the withdrawn amendment #42 at Report Stage in the Lords. We urge the Committee to reject this meaningless piece of nonsense.

By contrast, we note that New Clause 9 has been tabled. This reflects the well-refined terms of the withdrawn Lords amendment, and the objectives set out in our briefings, more closely. We believe that this new clause may require a little refinement, but it clearly expresses the proper and necessary objective.

The principle that unsuitable means of marketing must be prohibited by the regulator responsible for the relevant are of business would be established here in statute for the first time. This principle is vital, given that direct regulators may be expected to achieve a high degree of compliance with the regulatory standards they set and are empowered to impose suitable penalties in the case of breaches. It is quite correct that the ICO be responsible for enforcement of regulations covering the use and sharing of personal data, however the conduct of marketing activities is, and must be fully, in the hands of direct regulators where these exist.

There must be a role for either the ICO, or perhaps more properly Ofcom, in sweeping up on misuse of the telephone network in cases where there is no direct regulator in place, however we believe that this should only be secondary. Data published by the ICO shows that the overwhelming majority of Nuisance Calls are in relation to sectors that are directly regulated.

To address the specific issue of direct marketing of Claims Management services, to send a clear message to the FCA about its wider responsibilities and to communicate that message to all sectoral regulators, we urge the Committee to approve New Clause 9. If there are minor deficiencies in the drafting, these can be cleaned up later.

We are disappointed that no amendment has yet been tabled to address the wooliness of Clause 4. Our views on this are covered by the briefings referred to below.

If the message to the FCA, as referred to above, is fully communicated (we look to future publications of Hansard), then it could be that Clause 4 becomes redundant. There is no justification for the FCA failing to prohibit unsolicited direct marketing in respect of any Financial Service. Compulsion in respect of Claims Management is regrettably necessary, but we look to statutory regulators to discharge their duties fully, using the powers granted to them by parliament. We note that their capacity to do so in respect of Claims Management is fully covered by the addition of Amendment 4.

January 2018


Prepared 1st February 2018