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Finally, I look to the Minister to provide comfort that one longstanding UK marketing practice that is extremely popular with consumers will continue to be acceptable under the new legislative regime that comes into being next month. I speak of the “buy one get one free” offers, or to use what sounds like rather unparliamentary language—forgive me, but I have been looking forward to this—BOGOFs. Such offers are extremely popular with consumers here in the UK; indeed we have all seen them. In my view, it would be a great pity for both marketers and consumers if any interpretation could be placed on the Consumer Protection from Unfair Trading Regulations whereby such offers and similar marketing practices could be considered in breach of them. I hope that the noble Lord will feel able to provide comfort on this subject when he winds up the debate.

Lord Whitty: My Lords, I join everyone else in welcoming my noble friend to the Front Bench. He looks a lot younger to me after an hour of this debate. Following in the steps of the noble Baroness, I need to declare my chairmanship of both the existing and new National Consumer Council.

I welcome these regulations. While on behalf of consumers and others I have had doubts about some aspects of the better regulation agenda—some of which seem directed more at reducing the burden on business than on protecting consumers or the environment—in this case it has managed both to reduce the burden on business and to extend and simplify protection for consumers. That consists of two parts: first, the nature of the directive, in which the UK Government were very involved, has a principled-based objective—it is the kind of thing we like to see come out of Brussels—and, secondly, the transposition has removed a great deal of detailed regulation from the statute book. Consumers should benefit from this good example of better regulatory practice.

I had two reservations. The one in relation to the effectiveness of the resourcing of the TSOs has been covered already by my noble friend Lord Borrie. My second point, however, is that this is all very well—it provides simplification for consumers and should give them more power and more ability to enforce their rights—but none of it is very good if they do not know about it. It must be incumbent on the Government to ensure that there is effective consumer education and information in this area. Some information is beginning to go to business and I understand that consumer education is coming, but it will have to be on a fairly wide basis. After all, a lot of people vaguely know about the Trade Descriptions Act, but I doubt whether there is one in a thousand consumers out there who knows about these regulations. We need to turn that round within a matter of months and I would welcome some assurance that the Minister’s department has this in hand. Otherwise I very much welcome these regulations.



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Lord Tunnicliffe: My Lords, I thank noble Lords and the noble Baronesses for their kind words of welcome. I feel it is something of a snare because from now on it is going to go downhill.

Let me start with the points raised by the noble Baroness, Lady Wilcox, particularly on the issue of international uniformity. This is a problem which we face in many areas but this minimum or maximum directive has to be written across international legislation—it cannot be embellished—and this gives it a better chance of a uniform introduction across the Community. The European Court of Justice will have a responsibility for ensuring a consistent approach and the Commission is chairing a series of working groups on transposition and consistent enforcement which, it is to be hoped, will ensure the kind of uniformity the noble Baroness seeks. Certainly the Government have the same aspiration.

On small and medium enterprises, we agree they are important and share the concern that the publicity and guidance should be on a particularly grand scale in order to reach such enterprises, as the noble Lord, Lord Whitty, said. However, the regulations are intrinsically simpler than all the laws they replace, which is very important. It was a mighty task to incorporate in these regulations a comprehensive knowledge of the predecessor laws and we commend the people who did it. Now we have a single concept of fairness and specific examples of regulations which can be seen on one or two pages. I hope that business will find these regulations easier to understand and easier to comply with.

The noble Baroness asked whether the regulator, the OFT, and the local regulators, trading standards, will have sufficient resource. In both cases we believe that their current resource will be sufficient because of the change from many laws to a simple law. The Government are not convinced that the implementation of the unfair commercial practices directive will create new burdens on either the OFT or local authorities. It will replace many existing legislative provisions which trading standards authorities had the duty to enforce. We accept that the regulations also contain new protections which will need to be enforced but, beyond the need for training on these new rules, which the Government are funding, we do not believe they should inevitably lead to additional enforcement costs. Rather they will provide local authorities with a greater flexibility to prioritise their enforcement work and to tackle areas causing maximum consumer detriment and will provide more effective and flexible sets of enforcement options.

8.15 pm

However, the Government are investing £7.5 million over the next three years in specialist trading standards scam-buster teams. These regional teams will work across Great Britain, focusing on the worst rogue trading practices. There will also be teams at the forefront of using these new regulations.

The noble Lord, Lord Razzall, asked that this be handled by primary legislation. But, of course, this is a European directive and we have a consistent way of implementing European directives. Yes, it is indeed through secondary legislation, with all its limitations,

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but there is a burden on us in these circumstances to have extremely comprehensive consultation leading up to the publication of regulations. We believe that that has happened in this case. Noble Lords referred to some of those consultations and how the regulations have been improved as a result of it. This has led to a recognition that enforcement must be proportional. While it is quite true that these regulations make the criminal law more capable of being involved in their enforcement, the Government’s whole theme is a proportional approach.

On the issue of individual rights of redress, consumers already have extensive private law rights in contract and in tort. Nevertheless, the Government accept that providing a private right of redress in relation to the regulations could clarify existing consumer rights. It would enhance consumer rights in areas where the regulations provide new or improved protection—for instance, in relation to aggressive commercial practices—and should stimulate traders to greater compliance with the law.

However, we are concerned that adopting a private right of action for the regulations might have unintended and adverse consequences by potentially providing consumers with an undesirable attitude to sue traders and by impacting on the law of misrepresentation. The Government have therefore asked the Law Commission to undertake a project to consider how far a private right of redress for unfair commercial practices would simplify and extend consumer law.

On the point raised by the noble Lord, Lord Smith, on the Advertising Standards Authority, I can confirm that the Government would expect enforcers to secure compliance with the regulations in accordance with Hampton principles of targeted and proportionate enforcement in line with the regulator’s compliance code. The investigative powers in the regulations do not distinguish between criminal and civil outcomes so as to not predetermine how the breach will be tackled. This will enable enforcers to choose the remedies appropriate to the particular case. There will be clearly a case for criminal prosecutions in the most serious breaches, but the Government would encourage enforcers to use the full range of remedies, including advice and information, established means such as the Advertising Standards Authority and civil remedies. We strongly believe that where good practice has been established, particularly by the Advertising Standards Authority, these regulations should use and build on that good practice.

It is absolutely the point that the regulations in general are all-embracing—and I thank my noble friend Lord Borrie for bringing it out. They start from a general concept and then move to specifics for certainty in clear cases. That is their strength. These are great regulations. In some ways, I could not have had better regulations to start on, because they are so centrally valuable, representing the most important change in nearly 40 years in this area. But this is not a statement that former bodies have failed; they have done great service over many years. It is saying that basically, because of the European regulations, we have had to look at our own scope. So we can take the

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best practice, put it in these regulations, build on it and get a unified approach. We thank the former bodies for their contributions so far; as we have said, some of them will be used in the proportionate approach.

I touched on the point about ensuring resources. I agree with the noble Baroness, Lady Buscombe, that it will be important for businesses both large and small to continue to familiarise themselves with the implications of the new regulations. To assist this process of familiarisation, the Department for Business, Enterprise and Regulatory Reform is working with the Office of Fair Trading to educate businesses, consumers and enforcers in the run-up to, and in the months following, the coming into force of the two sets of regulations being debated this evening. This will include the distribution of pamphlets to more than 700,000 businesses, making them aware of their responsibilities under the new regulations.

In addition, the department has produced a communications toolkit for all business stakeholders, alerting them to the introduction of the new regulations and explaining how to publicise them to their members. A major public relations campaign designed to raise long-term awareness in consumers will be aimed at national and regional press and broadcasters as well as the many consumer titles in the marketplace. I am sure that that will bring out the differences. The predecessor legislation was aimed at the world being fair and the regulations are aimed at the world being fair. I hope that businesses will see this as an evolving thing rather than just asking them to scrap their mindset and start again.

It is so tempting to use the acronym. On the matter of “buy one get one free” offers and free gifts with purchases, I agree these are well established marketing practices in the UK and not in themselves misleading. We do not believe that the specific prohibited practice relating to the use of the description “free” will prevent the use of the word “free” in these cases. This is because the unavoidable cost of responding to the commercial practice is the cost of buying the product—the one item in the case of “buy one get one free” or, say, the magazine with which the free gift comes. The area in which there may be some intrusion is with bundling situations, when part of the bundle is described as free when in practice there is an expense in acquiring the larger bundle.

I thank noble Lords for being so kind in letting me present these regulations. The consumer protection regulations make an excellent new law that will protect millions of people in outlawing a host of misleading and intimidating sales practices that are all too often used to back consumers into a corner. The new protections will make life a lot tougher for rogues and make it easier for legitimate businesses to operate. Simplifying the consumer framework will make it easier for businesses, enforcers and consumers to understand. The business protection regulations will ensure that this does not lead to any reduction in business protection. I commend the regulations to the House.

On Question, Motion agreed to.



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Business Protection from Misleading Marketing Regulations 2008

8.24 pm

Lord Tunnicliffe: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft regulations laid before the House on 3 March be approved. 13th Report from the Joint Committee on Statutory Instruments.—(Lord Tunnicliffe.)

On Question, Motion agreed to.

Consumers, Estate Agents and Redress Act 2007 (Commencement No. 3 and Supplementary Provision) Order 2008

Motion not moved.

Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn until 8.35 pm. I thank the two opposition Front Benches for their co-operation in recognising that we could not do justice to the debate on the third instrument this evening and meet the very tight time constraints on the important business that follows at 8.35 pm.

Moved, accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.25 to 8.35 pm.]

Criminal Justice and Immigration Bill

Further consideration of amendments on Report resumed.

Clause 99 [Making of violent offender orders]:

Lord Bassam of Brighton moved Amendment No. 99F:

(a) the applicant, and(b) P, if P wishes to be heard,the court may make a violent offender order in respect of P if it is satisfied that the conditions in subsection (2) are met.”

The noble Lord said: My Lords, government Amendment No. 99F relates to the process that the courts must follow when making a violent offender order, and to the rights of the individual in respect of whom an application for a violent offender order is being made. The effect of the amendment is that the individual in respect of whom an application is being made has the right to be heard at the point of an application being considered, not just at the point of renewal or variation of an order as currently provided for.

Amendment No. 101 also relates to the process that the courts must follow when making a violent offender order. This amendment would require that violent offender orders are not made without a full

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adversarial hearing. The effect of this amendment would be that some of the criminal fairness guarantees in Article 6 would be applied to violent offender orders, particularly in relation to the cross-examination of witnesses.

I understand that through his amendment the noble Earl, Lord Onslow, seeks to address two issues. The first is to ensure that all individuals in respect of whom an application for a violent offender order is made are treated fairly—quite rightly so—and appropriately throughout the application process. I assure the House that we fully support that proposition. The second issue is to follow the recommendation of the Joint Committee on Human Rights and apply the fairness guarantees for criminal matters set out in Article 6 of the European Convention on Human Rights to violent offender orders. This would suggest that violent offender orders are criminal rather than civil in nature. I understand that that has been part of the debate we have had over the past few weeks on the issue. In particular, the amendment seeks to ensure that a violent offender order is not made without a full adversarial hearing, including the opportunity for the individual in respect of whom the application has been made to appear before the court and to cross-examine witnesses.

Before outlining my practical concerns with the amendment, I should make clear that violent offender orders are not criminal measures—I am sure the House is aware of that—they are civil, and as such do not have to comply with the criminal fairness guarantees in Article 6.

That said, I am very sympathetic to the noble Earl’s wish for an individual in respect of whom an application is being made to have the opportunity to appear before the court at the point of application, and not just at the point of variation or renewal—I reinforce that point. The government amendment achieves that. By giving the individual the opportunity to appear before the court, the amendment also ensures that he or she would be able to cross-examine any witnesses present.

My main concern with the noble Earl’s amendment is in relation to the issue of which witnesses would be required to be present at the hearing, the evidence that could be used, and, in particular, the use of hearsay evidence. As this amendment would provide some of the criminal fairness guarantees set out in Article 6 of the ECHR, my concern is that it would suggest that violent offender orders are criminal rather than civil in nature. It is essential that violent offender orders are treated as civil in nature, in part so that hearsay evidence can be used. I know that that view is not universally shared but there is a very good reason for it. Violent offender orders are intended to apply only to the most dangerous offenders. Before a violent offender order can be made, public protection agencies must consider an individual to pose a current risk of serious violent harm. We need and want hearsay evidence to be available for use in an application for a violent offender order. This is because there will be times when witnesses will be unwilling or even emotionally unable to be cross-examined. We need to ensure that

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evidence from persons who may feel intimidated from giving evidence directly can still be considered indirectly by the court.

I am keen to reassure the House that we expect hearsay evidence to be used in rare circumstances. In recognition of the seriousness of violent offender orders, and in sympathy with the aims of the amendment of the noble Earl, Lord Onslow, we intend to make clear in guidance that hearsay evidence should be used only where necessary and must always be relevant to the matters to be proved. Where an applicant intends to rely on hearsay evidence in court, written notice must always be given in advance of the hearing. Further, it will always be for the magistrate to decide what weight they attach to hearsay evidence.

We also intend to stress in guidance that in practice we want witnesses to attend the court hearing in person, and therefore be cross-examined, wherever possible. The House will be aware that the Government have invested considerable resource into supporting witnesses, and the introduction of witness protection measures such as screens and voice distortion technology supports this. The Government have also committed to strengthen arrangements for victims further as part of their new action plan to tackle violence, which was published on 18 February this year.

I agree that we need to make the application process for violent offender orders as fair as possible for the individuals in respect of whom an application has been made. However, we also have a duty to make the process as accessible as possible for witnesses who may feel at risk of serious violent harm from those individuals. I hope that the House will understand the difficult position that this leaves us in and see the changes that we have offered as a fair compromise. I hope that, having heard those arguments, the noble Earl will support the government amendment in lieu of his own. We have gone some way towards his position but there is a serious and proper constraint on how far we can move in that direction. I beg to move.

The Deputy Speaker (Baroness Gould of Potternewton): My Lords, I must inform your Lordships that if Amendment No. 99F is carried, I shall not be able to call Amendment No. 100 for reasons of pre-emption.

The Earl of Onslow: My Lords, I do not think that I have been so depressed for a long time as when I heard the noble Lord say how essential hearsay evidence is. As has been said, we could get hearsay evidence that somebody was having a punch-up in a pub. Twenty years ago that person had a rather unpleasant conviction which was time-expired. He cannot cross-examine the witnesses and he can be restricted. If that is not a punishment, I do not know what is. The Government may call it a civil procedure but it is not. It is a civil procedure used to impose punishment. There is no way around this; any restriction on liberty is punishment. If someone says that you cannot go from A to B, or that you have to stay in your house, that is a punishment. It is just the same punishment as saying to a child that they have

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to go to the naughty box or naughty corner, or whatever the fashionable thing is now.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, it is the naughty step.

The Earl of Onslow: My Lords, I thank the noble Lord, Lord Hunt. I knew that he could be of use to your Lordships’ House—

Lord Hunt of Kings Heath: My Lords, I am always happy to oblige the noble Earl.

The Earl of Onslow: My Lords, I know he is, and that is why even though we disagree we have quite a decent personal relationship.


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