SCHEDULES

SCHEDULE 1Amendments consequential on Part 1

Section 60

Supply of Goods (Implied Terms) Act 1973 (c. 13)

I1161

The Supply of Goods (Implied Terms) Act 1973 is amended as follows.

I1172

For “hire-purchase agreement” (or “hire purchase agreement”) in each place, except in section 15(1), substitute “ relevant hire-purchase agreement ”.

I1183

1

Section 10 (implied undertakings as to quality or fitness) is amended as follows.

2

Omit subsections (2D) to (2F).

3

Omit subsection (8).

I1194

1

Section 11A (modification of remedies for breach of statutory condition in non-consumer cases) is amended as follows.

2

In subsection (1) omit “then, if the person to whom the goods are bailed does not deal as consumer,”.

3

In subsection (3), for paragraph (b) substitute—

b

that the agreement was a relevant hire-purchase agreement.

4

Omit subsection (4).

I1205

In section 12A (remedies for breach of hire-purchase agreement as respects Scotland) omit subsections (2) and (3).

I1216

Omit section 14 (special provisions as to conditional sale agreements).

I1227

1

Section 15 (supplementary) is amended as follows.

2

In subsection (1)—

a

in the definition of “hire-purchase agreement” at the end insert—

and a hire-purchase agreement is relevant if it is not a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies;

b

omit the definition of “producer”.

3

Omit subsection (3).

Sale of Goods Act 1979 (c. 54)

I1238

The Sale of Goods Act 1979 is amended as follows.

I1249

In section 1 (contracts to which Act applies), after subsection (4) insert—

5

Certain sections or subsections of this Act do not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies.

6

Where that is the case it is indicated in the section concerned.

I12510

In section 11 (when condition to be treated as warranty), after subsection (4) insert—

4A

Subsection (4) does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in sections 19 to 22 of that Act).

I12611

In section 12 (implied terms about title etc), after subsection (6) insert—

7

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 17 of that Act).

I12712

In section 13 (sale by description), after subsection (4) insert—

5

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 11 of that Act).

I12813

1

Section 14 (implied terms about quality or fitness) is amended as follows.

2

Omit subsections (2D) to (2F).

3

After subsection (8) insert—

9

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in sections 9, 10 and 18 of that Act).

I12914

In section 15 (sale by sample), after subsection (4) insert—

5

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in sections 13 and 18 of that Act).

I13015

In section 15A (modification of remedies for breach of condition in non-consumer cases), in subsection (1) omit “then, if the buyer does not deal as consumer,”.

I13116

1

Section 15B (remedies for breach of contract as respects Scotland) is amended as follows.

2

After subsection (1) insert—

1A

Subsection (1) does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in sections 19 to 22 of that Act).

3

Omit subsection (2).

I13217

1

In section 20 (passing of risk), for subsection (4) substitute—

4

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 29 of that Act).

2

The marginal note “Passing of risk” substituted by the Sale and Supply of Goods to Consumers Regulations 2002 (SI 2002/3045) is not affected by the revocation of those Regulations by this Schedule.

I13318

In section 29 (rules about delivery), after subsection (3) insert—

3A

Subsection (3) does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 28 of that Act).

I13419

1

Section 30 (delivery of wrong quantity) is amended as follows.

2

In subsection (2A) omit “who does not deal as consumer”.

3

After subsection (5) insert—

6

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 25 of that Act).

I13520

In section 31 (instalment deliveries) after subsection (2) insert—

3

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 26 of that Act).

I13621

In section 32 (delivery to carrier), for subsection (4) substitute—

4

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 29 of that Act).

I13722

1

Section 33 (risk where goods are delivered at distant place) is amended as follows.

2

At the beginning insert “ (1) ”.

3

At the end insert—

2

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 29 of that Act).

I13823

1

Section 34 (buyer's right of examining the goods) is amended as follows.

2

At the beginning insert “ (1) ”.

3

At the end insert—

2

Nothing in this section affects the operation of section 22 (time limit for short-term right to reject) of the Consumer Rights Act 2015.

I13924

1

Section 35 (acceptance) is amended as follows.

2

Omit subsection (3).

3

After subsection (8) insert—

9

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 21 of that Act).

I14025

In section 35A (right of partial rejection), after subsection (4) insert—

5

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 21 of that Act).

I14126

1

Section 36 (buyer not bound to return rejected goods) is amended as follows.

2

At the beginning insert “ (1) ”.

3

At the end insert—

2

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 20 of that Act).

I14227

Omit Part 5A (additional rights of buyer in consumer cases).

I14328

In section 51 (damages for non-delivery), after subsection (3) insert—

4

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).

I14429

In section 52 (specific performance), after subsection (4) insert—

5

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).

I14530

In section 53 (remedy for breach of warranty), after subsection (4) insert—

4A

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).

I14631

In section 53A (measure of damages as respects Scotland), after subsection (2) insert—

2A

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).

I14732

1

Section 54 (interest) is amended as follows.

2

At the beginning insert “ (1) ”.

3

At the end insert—

2

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).

I14833

In section 55 (exclusion of implied terms), after subsection (1) insert—

1A

Subsection (1) does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 31 of that Act).

I14934

1

Section 58 (payment into court in Scotland) is amended as follows.

2

At the beginning insert “ (1) ”.

3

At the end insert—

2

This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 27 of that Act).

I15035

1

Section 61 (interpretation) is amended as follows.

2

In subsection (1) omit the following definitions—

a

“consumer contract”;

b

“producer”;

c

“repair”.

3

Omit subsection (5A).

I15136

In section 62(2) (savings for rules of law etc), for “this Act” substitute “ legislation including this Act and the Consumer Rights Act 2015 ”.

Supply of Goods and Services Act 1982 (c. 29)

I15237

The Supply of Goods and Services Act 1982 is amended as follows.

I15338

In each place—

a

for “contract for the transfer of goods” substitute “ relevant contract for the transfer of goods ”;

b

for “contract for the hire of goods” substitute “ relevant contract for the hire of goods ”;

c

for “contract for the supply of a service” substitute “ relevant contract for the supply of a service ”.

I15439

In section 1 (the contracts concerned: transfer of property in goods, as respects England and Wales and Northern Ireland), in subsection (1) at the end insert “ , and other than a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies. ”

I15540

In section 4 (implied terms about quality or fitness in contracts for transfer of goods) omit subsections (2B) to (2D).

I15641

In section 5A (modification of remedies for breach of statutory condition in non-consumer cases), in subsection (1) omit “then, if the transferee does not deal as consumer,”.

I15742

In section 6 (the contracts concerned: hire of goods, as respects England and Wales and Northern Ireland), in subsection (1) at the end insert “ , and other than a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies. ”

I15843

In section 9 (implied terms about quality or fitness in contracts for hire of goods) omit subsections (2B) to (2D).

I15944

In section 10A (modification of remedies for breach of statutory condition in non-consumer cases) in subsection (1) omit “then, if the bailee does not deal as consumer,”.

I16045

In section 11A (the contracts concerned: transfer of property in goods, as respects Scotland), in subsection (1) at the end insert “ , and other than a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies. ”

I16146

In section 11D (implied terms about quality or fitness in contracts for transfer of property in goods) omit subsections (3A) to (3C) and (10).

I16247

In section 11F (remedies for breach of contract) omit subsections (2) and (3).

I16348

In section 11G (the contracts concerned: hire of goods, as respects Scotland), in subsection (1) at the end insert “ , and other than a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies. ”

I16449

In section 11J (implied terms about quality or fitness in contracts for hire of goods) omit subsections (3A) to (3C) and (10).

I16550

Omit Part 1B (additional rights of transferee in consumer cases).

I16651

In section 12 (the contracts concerned: supply of services, as respects England and Wales and Northern Ireland), in subsection (1) at the end insert “ , other than a contract to which Chapter 4 of Part 1 of the Consumer Rights Act 2015 applies. ”

I16752

1

Section 18 (interpretation: general) is amended as follows.

2

In subsection (1) omit the definitions of “producer” and “repair”.

3

Omit subsection (4).

Sale and Supply of Goods to Consumers Regulations 2002 (SI 2002/3045)

I16853

The Sale and Supply of Goods to Consumers Regulations 2002 are revoked.

Regulatory Enforcement and Sanctions Act 2008 (c. 13)

I16954

In Schedule 3 to the Regulatory Enforcement and Sanctions Act 2008 (enactments specified for the purposes of Part 1), at the appropriate place insert— “ Consumer Rights Act 2015, Part 1 ”.

Consequential repeal and revocation

I17055

In consequence of the amendments made by this Schedule—

a

omit paragraph 5(9) of Schedule 2 to the Sale and Supply of Goods Act 1994, and

b

omit paragraph 97 of Schedule 2 to the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277).

SCHEDULE 2Consumer contract terms which may be regarded as unfair

Section 63

PART 1List of terms

I1711

A term which has the object or effect of excluding or limiting the trader's liability in the event of the death of or personal injury to the consumer resulting from an act or omission of the trader.

I1722

A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader.

I1733

A term which has the object or effect of making an agreement binding on the consumer in a case where the provision of services by the trader is subject to a condition whose realisation depends on the trader's will alone.

I1744

A term which has the object or effect of permitting the trader to retain sums paid by the consumer where the consumer decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the trader where the trader is the party cancelling the contract.

I1755

A term which has the object or effect of requiring that, where the consumer decides not to conclude or perform the contract, the consumer must pay the trader a disproportionately high sum in compensation or for services which have not been supplied.

I1766

A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.

I1777

A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader to retain the sums paid for services not yet supplied by the trader where it is the trader who dissolves the contract.

I1788

A term which has the object or effect of enabling the trader to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so.

I1799

A term which has the object or effect of automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express a desire not to extend the contract is unreasonably early.

I18010

A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.

I18111

A term which has the object or effect of enabling the trader to alter the terms of the contract unilaterally without a valid reason which is specified in the contract.

I18212

A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it.

I18313

A term which has the object or effect of enabling the trader to alter unilaterally without a valid reason any characteristics of the goods, digital content or services to be provided.

I18414

A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.

I18515

A term which has the object or effect of permitting a trader to increase the price of goods, digital content or services without giving the consumer the right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded.

I18616

A term which has the object or effect of giving the trader the right to determine whether the goods, digital content or services supplied are in conformity with the contract, or giving the trader the exclusive right to interpret any term of the contract.

I18717

A term which has the object or effect of limiting the trader's obligation to respect commitments undertaken by the trader's agents or making the trader's commitments subject to compliance with a particular formality.

I18818

A term which has the object or effect of obliging the consumer to fulfil all of the consumer's obligations where the trader does not perform the trader's obligations.

I18919

A term which has the object or effect of allowing the trader to transfer the trader's rights and obligations under the contract, where this may reduce the guarantees for the consumer, without the consumer's agreement.

I19020

A term which has the object or effect of excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, in particular by—

a

requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions,

b

unduly restricting the evidence available to the consumer, or

c

imposing on the consumer a burden of proof which, according to the applicable law, should lie with another party to the contract.

PART 2Scope of Part 1

Financial services

I19121

Paragraph 8 (cancellation without reasonable notice) does not include a term by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason, if the supplier is required to inform the consumer of the cancellation immediately.

I19222

Paragraph 11 (variation of contract without valid reason) does not include a term by which a supplier of financial services reserves the right to alter the rate of interest payable by or due to the consumer, or the amount of other charges for financial services without notice where there is a valid reason, if—

a

the supplier is required to inform the consumer of the alteration at the earliest opportunity, and

b

the consumer is free to dissolve the contract immediately.

Contracts which last indefinitely

I19323

Paragraphs 11 (variation of contract without valid reason), 12 (determination of characteristics of goods etc after consumer bound) and 14 (determination of price after consumer bound) do not include a term under which a trader reserves the right to alter unilaterally the conditions of a contract of indeterminate duration if—

a

the trader is required to inform the consumer with reasonable notice, and

b

the consumer is free to dissolve the contract.

Sale of securities, foreign currency etc

I19424

Paragraphs 8 (cancellation without reasonable notice), 11 (variation of contract without valid reason), 14 (determination of price after consumer bound) and 15 (increase in price) do not apply to—

a

transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the trader does not control, and

b

contracts for the purchase or sale of foreign currency, traveller's cheques or international money orders denominated in foreign currency.

Price index clauses

I19525

Paragraphs 14 (determination of price after consumer bound) and 15 (increase in price) do not include a term which is a price-indexation clause (where otherwise lawful), if the method by which prices vary is explicitly described.

SCHEDULE 3Enforcement of the law on unfair contract terms and notices

Section 70

Application of Schedule

I1961

This Schedule applies to—

a

a term of a consumer contract,

b

a term proposed for use in a consumer contract,

c

a term which a third party recommends for use in a consumer contract, or

d

a consumer notice.

Consideration of complaints

I1972

1

A regulator may consider a complaint about a term or notice to which this Schedule applies (a “relevant complaint”).

2

If a regulator other than the CMA intends to consider a relevant complaint, it must notify the CMA that it intends to do so, and must then consider the complaint.

3

If a regulator considers a relevant complaint, but decides not to make an application under paragraph 3 in relation to the complaint, it must give reasons for its decision to the person who made the complaint.

Application for injunction or interdict

I1983

1

A regulator may apply for an injunction or (in Scotland) an interdict against a person if the regulator thinks that—

a

the person is using, or proposing or recommending the use of, a term or notice to which this Schedule applies, and

b

the term or notice falls within any one or more of sub-paragraphs (2), (3) or (5).

2

A term or notice falls within this sub-paragraph if it purports to exclude or restrict liability of the kind mentioned in—

a

section 31 (exclusion of liability: goods contracts),

b

section 47 (exclusion of liability: digital content contracts),

c

section 57 (exclusion of liability: services contracts), or

d

section 65(1) (business liability for death or personal injury resulting from negligence).

3

A term or notice falls within this sub-paragraph if it is unfair to any extent.

4

A term within paragraph 1(1)(b) or (c) (but not within paragraph 1(1)(a)) is to be treated for the purposes of section 62(4) and (5) (assessment of fairness) as if it were a term of a contract.

5

A term or notice falls within this sub-paragraph if it breaches section 68 (requirement for transparency).

6

A regulator may apply for an injunction or interdict under this paragraph in relation to a term or notice whether or not it has received a relevant complaint about the term or notice.

Notification of application

I1994

1

Before making an application under paragraph 3, a regulator other than the CMA must notify the CMA that it intends to do so.

2

The regulator may make the application only if—

a

the period of 14 days beginning with the day on which the regulator notified the CMA has ended, or

b

before the end of that period, the CMA agrees to the regulator making the application.

Determination of application

I2005

1

On an application for an injunction under paragraph 3, the court may grant an injunction on such conditions, and against such of the respondents, as it thinks appropriate.

2

On an application for an interdict under paragraph 3, the court may grant an interdict on such conditions, and against such of the defenders, as it thinks appropriate.

3

The injunction or interdict may include provision about—

a

a term or notice to which the application relates, or

b

any term of a consumer contract, or any consumer notice, of a similar kind or with a similar effect.

4

It is not a defence to an application under paragraph 3 to show that, because of a rule of law, a term to which the application relates is not, or could not be, an enforceable contract term.

5

If a regulator other than the CMA makes the application, it must notify the CMA of—

a

the outcome of the application, and

b

if an injunction or interdict is granted, the conditions on which, and the persons against whom, it is granted.

Undertakings

I2016

1

A regulator may accept an undertaking from a person against whom it has applied, or thinks it is entitled to apply, for an injunction or interdict under paragraph 3.

2

The undertaking may provide that the person will comply with the conditions that are agreed between the person and the regulator about the use of terms or notices, or terms or notices of a kind, specified in the undertaking.

3

If a regulator other than the CMA accepts an undertaking, it must notify the CMA of—

a

the conditions on which the undertaking is accepted, and

b

the person who gave it.

Publication, information and advice

I2027

1

The CMA must arrange the publication of details of—

a

any application it makes for an injunction or interdict under paragraph 3,

b

any injunction or interdict under this Schedule, and

c

any undertaking under this Schedule.

2

The CMA must respond to a request whether a term or notice, or one of a similar kind or with a similar effect, is or has been the subject of an injunction, interdict or undertaking under this Schedule.

3

Where the term or notice, or one of a similar kind or with a similar effect, is or has been the subject of an injunction or interdict under this Schedule, the CMA must give the person making the request a copy of the injunction or interdict.

4

Where the term or notice, or one of a similar kind or with a similar effect, is or has been the subject of an undertaking under this Schedule, the CMA must give the person making the request—

a

details of the undertaking, and

b

if the person giving the undertaking has agreed to amend the term or notice, a copy of the amendments.

5

The CMA may arrange the publication of advice and information about the provisions of this Part.

6

In this paragraph—

a

references to an injunction or interdict under this Schedule are to an injunction or interdict granted on an application by the CMA under paragraph 3 or notified to it under paragraph 5, and

b

references to an undertaking are to an undertaking given to the CMA under paragraph 6 or notified to it under that paragraph.

Meaning of “regulator”

I2038

1

In this Schedule “regulator” means—

a

the CMA,

b

the Department of Enterprise, Trade and Investment in Northern Ireland,

c

a local weights and measures authority in Great Britain,

d

the Financial Conduct Authority,

e

the Office of Communications,

f

the Information Commissioner,

g

the Gas and Electricity Markets Authority,

h

the Water Services Regulation Authority,

i

F3the Office of Rail and Road,

j

the Northern Ireland Authority for Utility Regulation, or

k

the Consumers' Association.

2

The Secretary of State may by order made by statutory instrument amend sub-paragraph (1) so as to add, modify or remove an entry.

3

An order under sub-paragraph (2) may amend sub-paragraph (1) so as to add a body that is not a public authority only if the Secretary of State thinks that the body represents the interests of consumers (or consumers of a particular description).

4

The Secretary of State must publish (and may from time to time vary) other criteria to be applied by the Secretary of State in deciding whether to add an entry to, or remove an entry from, sub-paragraph (1).

5

An order under sub-paragraph (2) may make consequential amendments to this Schedule (including with the effect that any of its provisions apply differently, or do not apply, to a body added to sub-paragraph (1)).

6

An order under sub-paragraph (2) may contain transitional or transitory provision or savings.

7

No order may be made under sub-paragraph (2) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.

8

In this paragraph “public authority” has the same meaning as in section 6 of the Human Rights Act 1998.

Other definitions

I2049

In this Schedule—

  • “the CMA” means the Competition and Markets Authority;

  • “injunction” includes an interim injunction;

  • “interdict” includes an interim interdict.

The Financial Conduct Authority

I20510

The functions of the Financial Conduct Authority under this Schedule are to be treated as functions of the Authority under the Financial Services and Markets Act 2000.

SCHEDULE 4Amendments consequential on Part 2

Section 75

Misrepresentation Act 1967 (c. 7)

I2061

1

Section 3 of the Misrepresentation Act 1967 (avoidance of provision excluding liability for misrepresentation) is amended as follows.

2

At the beginning insert “ (1) ”.

3

At the end insert—

2

This section does not apply to a term in a consumer contract within the meaning of Part 2 of the Consumer Rights Act 2015 (but see the provision made about such contracts in section 62 of that Act).

Unfair Contract Terms Act 1977 (c. 50)

I207I4282

The Unfair Contract Terms Act 1977 is amended as follows.

I208I4293

In section 1(2) (scope of Part 1) for “to 4” substitute “ , 3 ”.

I209I4304

In section 2 (negligence liability), after subsection (3) insert—

4

This section does not apply to—

a

a term in a consumer contract, or

b

a notice to the extent that it is a consumer notice,

(but see the provision made about such contracts and notices in sections 62 and 65 of the Consumer Rights Act 2015).

I210I4315

1

Section 3 (liability arising in contract) is amended as follows.

2

In subsection (1) omit “as consumer or”.

3

After subsection (2) insert—

3

This section does not apply to a term in a consumer contract (but see the provision made about such contracts in section 62 of the Consumer Rights Act 2015).

I211I4326

Omit section 4 (unreasonable indemnity clauses).

I2127

Omit section 5 (“guarantee” of consumer goods).

I2138

1

Section 6 (sale and hire-purchase) is amended as follows.

2

After subsection (1) insert—

1A

Liability for breach of the obligations arising from—

a

section 13, 14 or 15 of the 1979 Act (seller's implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose);

b

section 9, 10 or 11 of the 1973 Act (the corresponding things in relation to hire purchase),

cannot be excluded or restricted by reference to a contract term except in so far as the term satisfies the requirement of reasonableness.

3

Omit subsections (2) and (3).

4

After subsection (4) insert—

5

This section does not apply to a consumer contract (but see the provision made about such contracts in section 31 of the Consumer Rights Act 2015).

I2149

1

Section 7 (miscellaneous contracts under which goods pass) is amended as follows.

2

After subsection (1) insert—

1A

Liability in respect of the goods' correspondence with description or sample, or their quality or fitness for any particular purpose, cannot be excluded or restricted by reference to such a term except in so far as the term satisfies the requirement of reasonableness.

3

Omit subsections (2) and (3).

4

After subsection (4) insert—

4A

This section does not apply to a consumer contract (but see the provision made about such contracts in section 31 of the Consumer Rights Act 2015).

I215I43310

Omit section 9 (effect of breach of contract).

I216I43411

Omit section 12 (“dealing as consumer”).

I217I43512

In section 13(1) (varieties of exemption clauses) for “and 5 to” substitute “ , 6 and ”.

I218I43613

In section 14 (interpretation of Part 1), at the appropriate places insert—

“consumer contract” has the same meaning as in the Consumer Rights Act 2015 (see section 61);

“consumer notice” has the same meaning as in the Consumer Rights Act 2015 (see section 61);

I219I43714

1

Section 15 (scope of Part 2) is amended as follows.

2

In subsection (2) for “to 18” substitute “ and 17 ”.

3

In subsection (3)—

a

for “to 18” substitute “ and 17 ”, and

b

in paragraph (b) omit sub-paragraph (ii) and the “or” preceding it.

I220I43815

In section 16 (liability for breach of duty), after subsection (3) insert—

4

This section does not apply to—

a

a term in a consumer contract, or

b

a notice to the extent that it is a consumer notice,

(but see the provision made about such contracts and notices in sections 62 and 65 of the Consumer Rights Act 2015).

I221I43916

1

Section 17 (control of unreasonable exemptions in consumer or standard form contracts) is amended as follows.

2

In the heading omit “consumer or”.

3

In subsection (1)—

a

omit “a consumer contract or”,

b

in paragraph (a) omit “consumer or”, and

c

in paragraph (b) omit “consumer or”.

4

After subsection (2) insert—

3

This section does not apply to a term in a consumer contract (but see the provision made about such contracts in section 62 of the Consumer Rights Act 2015).

I222I44017

Omit section 18 (unreasonable indemnity clauses in consumer contracts).

I22318

Omit section 19 (“guarantee” of consumer goods).

I22419

1

Section 20 (obligations implied by law in sale and hire-purchase contracts) is amended as follows.

2

After subsection (1) insert—

1A

Any term of a contract which purports to exclude or restrict liability for breach of the obligations arising from—

a

section 13, 14 or 15 of the 1979 Act (seller's implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose);

b

section 9, 10 or 11 of the 1973 Act (the corresponding things in relation to hire purchase),

shall have effect only if it was fair and reasonable to incorporate the term in the contract.

1B

This section does not apply to a consumer contract (but see the provision made about such contracts in section 31 of the Consumer Rights Act 2015).

3

Omit subsection (2).

I22520

1

Section 21 (obligations implied by law in other contracts for the supply of goods) is amended as follows.

2

In subsection (1), for paragraphs (a) and (b) substitute “ such as is referred to in subsection (3) below shall have no effect if it was not fair and reasonable to incorporate the term in the contract. ”

3

In subsection (2)(b) omit “unless it is a consumer contract (and then only in favour of the consumer)”.

4

After subsection (3A) insert—

3B

This section does not apply to a consumer contract (but see the provision made about such contracts in section 31 of the Consumer Rights Act 2015).

I226I44121

Omit section 22 (consequence of breach of contract).

I227I44222

1

Section 25 (interpretation of Part 2) is amended as follows.

2

In subsection (1)—

a

omit the definition of “consumer”,

b

for the definition of “consumer contract” substitute—

“consumer contract” has the same meaning as in the Consumer Rights Act 2015 (see section 61);

c

at the appropriate place insert—

“consumer notice” has the same meaning as in the Consumer Rights Act 2015 (see section 61);

3

Omit subsections (1A) and (1B).

4

In subsection (5), for “and 16 and 19 to” substitute “ , 16, 20 and ”.

I228I44323

In section 26(2) (international supply contracts) omit “or 4”.

I229I44424

1

Section 27 (choice of law clauses) is amended as follows.

2

In subsection (2)—

a

omit “(either or both)”, and

b

omit paragraph (b) and the “or” preceding it.

3

Omit subsection (3).

I230I44525

Omit section 28 (temporary provision for sea carriage of passengers).

I231I44626

1

Schedule 1 (scope of sections 2 to 4 and 7) is amended as follows.

2

In the heading, for “to 4” substitute “ , 3 ”.

3

In paragraph 1, for “to 4” substitute “ and 3 ”.

4

In paragraph 2—

a

for “to 4” substitute “ , 3 ”, and

b

omit “except in favour of a person dealing as consumer”.

5

In paragraph 3—

a

for “, 3 and 4” substitute “ and 3 ”, and

b

omit “, except in favour of a person dealing as consumer,”.

I232I44727

In Schedule 2 (“guidelines” for application of reasonableness test), for “6(3), 7(3) and (4),” substitute “ 6(1A), 7(1A) and (4), ”.

Companies Act 1985 (c. 6)

I23328

1

Schedule 15D to the Companies Act 1985 (specified descriptions of disclosures for the purposes of section 449) is amended as follows.

2

In paragraph 17—

a

omit paragraph (i), and

b

after paragraph (l) insert—

m

Schedule 3 to the Consumer Rights Act 2015

3

For paragraph 25 substitute—

25

A disclosure for the purposes of enabling or assisting a regulator under Schedule 3 to the Consumer Rights Act 2015 other than the Competition and Markets Authority to exercise its functions under that Schedule.

Merchant Shipping Act 1995 (c. 21)

I23429

In section 184 of the Merchant Shipping Act 1995 (application of Schedule 6 to carriage within British Islands) omit subsection (2).

Arbitration Act 1996 (c. 23)

I23530

The Arbitration Act 1996 is amended as follows.

I23631

1

Section 89 (application of unfair terms regulations to consumer arbitration agreements) is amended as follows.

2

In subsection (1), for “the Unfair Terms in Consumer Contracts Regulations 1994” substitute “ Part 2 (unfair terms) of the Consumer Rights Act 2015 ”.

3

For subsection (2) substitute—

2

In those sections “the Part” means Part 2 (unfair terms) of the Consumer Rights Act 2015.

I23732

For section 90 (regulations apply where consumer is a legal person) substitute—

90Part applies where consumer is a legal person

The Part applies where the consumer is a legal person as it applies where the consumer is an individual.

I23833

In section 91(1) (arbitration agreement unfair where modest amount sought) for “Regulations” substitute “ Part ”.

Unfair Terms in Consumer Contracts Regulations 1999 (S.I. 1999/2083)

I23934

The Unfair Terms in Consumer Contracts Regulations 1999 are revoked.

Enterprise Act 2002 (c. 40)

I24035

In Schedule 15 to the Enterprise Act 2002 (enactments for the purposes of which disclosures may be made), at the end insert— “ Schedule 3 to the Consumer Rights Act 2015. ”

Companies Act 2006 (c. 46)

I24136

The Companies Act 2006 is amended as follows.

I24237

1

Section (A) of Part 2 of Schedule 2 (specified descriptions of disclosures for the purposes of section 948) is amended as follows.

2

In paragraph 25—

a

omit paragraph (h), and

b

after paragraph (k) insert—

l

Schedule 3 to the Consumer Rights Act 2015

3

For paragraph 33 substitute—

33

A disclosure for the purposes of enabling or assisting a regulator under Schedule 3 to the Consumer Rights Act 2015 other than the Competition and Markets Authority to exercise its functions under that Schedule.

I24338

1

Part 2 of Schedule 11A (specified descriptions of disclosures for the purposes of section 1224A) is amended as follows.

2

In paragraph 39, for paragraph (i) insert—

i

Schedule 3 to the Consumer Rights Act 2015

3

For paragraph 48 substitute—

48

A disclosure for the purposes of enabling or assisting a regulator under Schedule 3 to the Consumer Rights Act 2015 other than the Competition and Markets Authority to exercise its functions under that Schedule.

Consequential repeals

I24439

In consequence of the amendments made by this Schedule—

a

omit paragraph 19(b) of Schedule 2 to the Sale of Goods Act 1979, and

b

in paragraph 21 of that Schedule, omit “and (2)(a)” and “(in each case)”.

C4C5SCHEDULE 5Investigatory powers etc.

Section 77

Annotations:
Modifications etc. (not altering text)
C5

Sch. 5 applied (with modifications) (26.12.2017) by The Radio Equipment Regulations 2017 (S.I. 2017/1206), reg. 1, Sch. 10 para. 3 (with regs. 3-5, 77)

PART 1Basic concepts

Overview

I7I52I2451

1

This Schedule confers investigatory powers on enforcers and specifies the purposes for which and the circumstances in which those powers may be exercised.

2

Part 1 of this Schedule contains interpretation provisions; in particular paragraphs 2 to 6 explain what is meant by an “enforcer”.

3

Part 2 of this Schedule explains what is meant by “the enforcer's legislation”.

4

Part 3 of this Schedule contains powers in relation to the production of information; paragraph 13 sets out which enforcers may exercise those powers, and the purposes for which they may do so.

5

Part 4 of this Schedule contains further powers; paragraphs 19 and 20 set out which enforcers may exercise those powers, and the purposes for which they may do so.

6

Part 5 of this Schedule contains provisions that are supplementary to the powers in Parts 3 and 4 of this Schedule.

7

Part 6 of this Schedule makes provision about the exercise of functions by certain enforcers outside their area or district and the bringing of proceedings in relation to conduct outside an enforcer's area or district.

Enforcers

I53I8I2462

1

In this Schedule “enforcer” means—

a

a domestic enforcer,

b

an EU enforcer,

c

a public designated enforcer, or

d

an unfair contract terms enforcer.

2

But in Part 4 and paragraphs 38 and 41 of this Schedule “enforcer” means—

a

a domestic enforcer, or

b

an EU enforcer.

3

In paragraphs 13, 19 and 20 of this Schedule, a reference to an enforcer exercising a power includes a reference to an officer of the enforcer exercising that power.

Domestic enforcers

I9I54I2473

1

In this Schedule “domestic enforcer” means—

a

the Competition and Markets Authority,

b

a local weights and measures authority in Great Britain,

c

a district council in England,

d

the Department of Enterprise, Trade and Investment in Northern Ireland,

e

a district council in Northern Ireland,

f

the Secretary of State,

g

the Gas and Electricity Markets Authority,

F27ga

the Department for Infrastructure in Northern Ireland;

gb

the Utility Regulator in Northern Ireland.

h

the British Hallmarking Council,

i

an assay office within the meaning of the Hallmarking Act 1973, or

j

any other person to whom the duty in subsection (1) of section 27 of the Consumer Protection Act 1987 (duty to enforce safety provisions) applies by virtue of regulations under subsection (2) of that section.

2

But the Gas and Electricity Markets Authority is not a domestic enforcer for the purposes of Part 4 of this Schedule.

3

The reference to the Department of Enterprise, Trade and Investment in Northern Ireland includes a person with whom the Department has made arrangements, under F12regulation 61(1) and (2) of the Lifts Regulations 2016 (SI 2016/1093) for enforcement of those regulations.

EU enforcers

I55I10I2484

In this Schedule “EU enforcer” means—

a

the Competition and Markets Authority,

b

a local weights and measures authority in Great Britain,

c

the Department of Enterprise, Trade and Investment in Northern Ireland,

d

the Financial Conduct Authority,

e

the Civil Aviation Authority,

f

the Secretary of State,

g

the Department of Health, Social Services and Public Safety in Northern Ireland,

h

the Office of Communications,

i

an enforcement authority within the meaning of section 120(15) of the Communications Act 2003 (regulation of premium rate services), or

j

the Information Commissioner.

Public designated enforcers

I56I11I2495

In this Schedule “public designated enforcer” means a person or body which—

a

is designated by order under subsection (2) of section 213 of the Enterprise Act 2002, and

b

has been designated by virtue of subsection (3) of that section (which provides that the Secretary of State may designate a public body only if satisfied that it is independent).

Unfair contract terms enforcer

I57I12I2506

In this Schedule “unfair contract terms enforcer” means a person or body which—

a

is for the time being listed in paragraph 8(1) of Schedule 3 (persons or bodies that may enforce provisions about unfair contract terms), and

b

is a public authority within the meaning of section 6 of the Human Rights Act 1998.

Officers

I58I13I2517

1

In this Schedule “officer”, in relation to an enforcer, means—

a

an inspector appointed by the enforcer to exercise powers under this Schedule, or authorised to do so,

b

an officer of the enforcer appointed by the enforcer to exercise powers under this Schedule, or authorised to do so,

c

an employee of the enforcer (other than an inspector or officer) appointed by the enforcer to exercise powers under this Schedule, or authorised to do so, or

d

a person (other than an inspector, officer or employee of the enforcer) authorised by the enforcer to exercise powers under this Schedule.

2

But references in this Schedule to an officer in relation to a particular power only cover a person within sub-paragraph (1) if and to the extent that the person has been appointed or authorised to exercise that power.

3

A person who, immediately before the coming into force of this Schedule, was appointed or authorised to exercise a power replaced by a power in this Schedule is to be treated as having been appointed or authorised to exercise the new power.

4

In this paragraph “employee”, in relation to the Secretary of State, means a person employed in the civil service of the State.

Interpretation of other terms

I59I14I2528

In this Schedule—

  • “Community infringement” has the same meaning as in section 212 of the Enterprise Act 2002;

  • “document” includes information recorded in any form;

  • “enforcement order” means an order under section 217 of the Enterprise Act 2002;

  • “interim enforcement order” means an order under section 218 of that Act;

  • “the Regulation on Accreditation and Market Surveillance” means Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93.

PART 2The enforcer's legislation

Enforcer's legislation

I15I60I2539

1

In this Schedule “the enforcer's legislation”, in relation to a domestic enforcer, means—

a

legislation or notices which, by virtue of a provision listed in paragraph 10, the domestic enforcer has a duty or power to enforce, and

b

where the domestic enforcer is listed in an entry in the first column of the table in paragraph 11, the legislation listed in the corresponding entry in the second column of that table.

2

References in this Schedule to a breach of or compliance with the enforcer's legislation include a breach of or compliance with a notice issued under—

a

the enforcer's legislation, or

b

legislation under which the enforcer's legislation is made.

3

References in this Schedule to a breach of or compliance with the enforcer's legislation are to be read, in relation to the F13Lifts Regulations 2016 (SI 2016/1093) , as references to a breach of or compliance with the Regulations as they apply to F14lifts for private use and consumption and safety components for such lifts .

Enforcer's legislation: duties and powers mentioned in paragraph 9(1)(a)

I61I16I25410

The duties and powers mentioned in paragraph 9(1)(a) are those arising under any of the following provisions—

  • section 26(1) or 40(1)(b) of the Trade Descriptions Act 1968 (including as applied by regulation 8(3) of the Crystal Glass (Descriptions) Regulations 1973 (SI 1973/1952) and regulation 10(2) of the Footwear (Indication of Composition) Labelling Regulations 1995 (SI 1995/2489));

  • section 9(1) or (6) of the Hallmarking Act 1973;

  • paragraph 6 of the Schedule to the Prices Act 1974 (including as read with paragraph 14(1) of that Schedule);

  • section 161(1) of the Consumer Credit Act 1974;

  • section 26(1) of the Estate Agents Act 1979;

  • Article 39 of the Weights and Measures (Northern Ireland) Order 1981 (SI 1981/231 (NI 10));

  • section 16A(1) or (4) of the Video Recordings Act 1984;

  • section 27(1) of the Consumer Protection Act 1987 (including as applied by section 12(1) of the Fireworks Act 2003 to fireworks regulations under that Act F28and by regulation 18 of the Standardised Packaging of Tobacco Products Regulations 2015 (S.I. 2015/829) to those Regulations);

  • section 215(1) of the Education Reform Act 1988;

  • section 107A(1) or (3) or 198A(1) or (3) of the Copyright, Designs and Patents Act 1988;

  • F7...

  • paragraph 1 of Schedule 3 to the Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992/3288);

  • section 30(4) or (7) or 31(4)(a) of the Clean Air Act 1993;

  • paragraph 1 of Schedule 2 to the Sunday Trading Act 1994;

  • section 93(1) or (3) of the Trade Marks Act 1994;

  • section 8A(1) or (3) of the Olympic Symbol etc (Protection) Act 1995;

  • F9...

  • F5...

  • regulation 5C(5) of the Motor Fuel (Composition and Content) Regulations 1999 (SI 1999/3107);

  • F33...

  • paragraph 1(a) of Schedule 10 to the Personal Protective Equipment Regulations 2002 (SI 2002/1144);

  • F1...

  • section 3(1) of the Christmas Day Trading Act 2004;

  • regulation 10(1) of the General Product Safety Regulations 2005 (SI 2005/1803);

  • regulation 10(1) of the Weights and Measures (Packaged Goods) Regulations 2006 (SI 2006/659);

  • F16...

  • F17...

  • F18...

  • F19...

  • F20...

  • F21...

  • F22...

  • F23...

  • F24...

  • F25...

  • F39...

  • regulation 13(1) or (1A) of the Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276);

  • regulation 19(1) or (1A) of the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277);

  • paragraph 2 or 5 of Schedule 5 to the Supply of Machinery (Safety) Regulations 2008 (SI 2008/1597);

  • F31section A11(7)(a) of the Apprenticeships, Skills, Children and Learning Act 2009;

  • regulation 32(2) or (3) of the Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010 (SI 2010/2960);

  • regulation 10(1) of the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 (SR 2011/331);

  • regulation 11 of the Textile Products (Labelling and Fibre Composition) Regulations 2012 (SI 2012/1102);

  • regulation 6(1) of the Cosmetic Products Enforcement Regulations 2013 (SI 2013/1478);

  • section 87(1) of this Act;

  • section 93(1) or (2) of this Act;

  • F2regulation 7(1) of the Packaging (Essential Requirements) Regulations 2015.

  • F29regulation 53 of the Tobacco and Related Products Regulations 2016 (S.I. 2016/507).

  • F40regulation 52(1)(a)(ii) or (b)(ii) of the Electromagnetic Compatibility Regulations 2016 (S.I. 2016/1091);

  • F8regulation 55(1) or (2) of the Simple Pressure Vessels (Safety) Regulations 2016 (SI 2016/1092);

  • F10regulation 61(1) or (2) of the Lifts Regulations 2016 (SI 2016/1093);

  • F11regulation 41(1) or (2) of the Electrical Equipment (Safety) Regulations 2016 (SI 2016/1101);

  • F6regulation 67(1) or (2) of the Pressure Equipment (Safety) Regulations 2016 (S.I. 2016/1105);

  • F15regulation 62 of the Non-automatic Weighing Instruments Regulations 2016 (S.I. 2016/1152)

  • F35regulations 70 of the Measuring Instruments Regulations 2016 (SI 2016/1153);

  • F32regulation 66(1) or (2) of the Recreational Craft Regulations 2017 (S.I. 2017/737);

  • F34regulation 56(1)(a)(ii) or (b)(ii) or (2) of the Radio Equipment Regulations 2017 (S.I. 2017/1206)

Enforcer's legislation: legislation mentioned in paragraph 9(1)(b)

I62I17I25511

Here is the table mentioned in paragraph 9(1)(b)—

Enforcer

Legislation

A local weights and measures authority in Great Britain or the Department of Enterprise, Trade and Investment in Northern Ireland

Section 35ZA of the Registered Designs Act 1949

A local weights and measures authority in Great Britain or the Department of Enterprise, Trade and Investment in Northern Ireland

The Measuring Container Bottles (EEC Requirements) Regulations 1977 (SI 1977/932)

The Secretary of State

The Alcoholometers and Alcohol Hydrometers (EEC Requirements) Regulations 1977 (SI 1977/1753)

A local weights and measures authority in Great Britain

The Weights and Measures Act 1985 and regulations and orders made under that Act

A local weights and measures authority in Great Britain or the Department of Enterprise, Trade and Investment in Northern Ireland

The Measuring Instruments (EEC Requirements) Regulations 1988 (SI 1988/186)

A local weights and measures authority in Great Britain or the Department of Enterprise, Trade and Investment in Northern Ireland

The Financial Services and Markets Act 2000 so far as it relates to a relevant regulated activity within the meaning of section 107(4)(a) of the Financial Services Act 2012

F26. . .

F26. . .

F30A London borough council

F30Section 75 of the London Local Authorities Act 2007

Powers to amend paragraph 10 or 11

12

1

The Secretary of State may by order made by statutory instrument—

a

amend paragraph 10 or the table in paragraph 11 by adding, modifying or removing any entry in it;

b

in consequence of provision made under paragraph (a), amend, repeal or revoke any other legislation (including this Act) whenever passed or made.

2

The Secretary of State may not make an order under this paragraph that has the effect that a power of entry, or an associated power, contained in legislation other than this Act is replaced by a power of entry, or an associated power, contained in this Schedule unless the Secretary of State thinks that the condition in sub-paragraph (3) is met.

3

That condition is that, on and after the changes made by the order, the safeguards applicable to the new power, taken together, provide a greater level of protection than any safeguards applicable to the old power.

4

In sub-paragraph (2) “power of entry” and “associated power” have the meanings given by section 46 of the Protection of Freedoms Act 2012.

5

An order under this paragraph may contain transitional or transitory provision or savings.

6

A statutory instrument containing an order under this paragraph that amends or repeals primary legislation may not be made unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.

7

Any other statutory instrument containing an order under this paragraph is subject to annulment in pursuance of a resolution of either House of Parliament.

8

In this paragraph “primary legislation” means—

a

an Act of Parliament,

b

an Act of the Scottish Parliament,

c

an Act or Measure of the National Assembly for Wales, or

d

Northern Ireland legislation.

PART 3Powers in relation to the production of information

Exercise of powers in this Part

I63I18I25613

1

An enforcer of a kind mentioned in this paragraph may exercise a power in this Part of this Schedule only for the purposes and in the circumstances mentioned in this paragraph in relation to that kind of enforcer.

2

The Competition and Markets Authority may exercise the powers in this Part of this Schedule for any of the following purposes—

a

to enable the Authority to exercise or to consider whether to exercise any function it has under Part 8 of the Enterprise Act 2002;

b

to enable a private designated enforcer to consider whether to exercise any function it has under that Part;

c

to enable a Community enforcer to consider whether to exercise any function it has under that Part;

d

to ascertain whether a person has complied with or is complying with an enforcement order or an interim enforcement order;

e

to ascertain whether a person has complied with or is complying with an undertaking given under section 217(9), 218(10) or 219 of the Enterprise Act 2002.

3

A public designated enforcer, a local weights and measures authority in Great Britain, the Department of Enterprise, Trade and Investment in Northern Ireland or an EU enforcer other than the Competition and Markets Authority may exercise the powers in this Part of this Schedule for any of the following purposes—

a

to enable that enforcer to exercise or to consider whether to exercise any function it has under Part 8 of the Enterprise Act 2002;

b

to ascertain whether a person has complied with or is complying with an enforcement order or an interim enforcement order made on the application of that enforcer;

c

to ascertain whether a person has complied with or is complying with an undertaking given under section 217(9) or 218(10) of the Enterprise Act 2002 following such an application;

d

to ascertain whether a person has complied with or is complying with an undertaking given to that enforcer under section 219 of that Act.

4

A domestic enforcer may exercise the powers in this Part of this Schedule for the purpose of ascertaining whether there has been a breach of the enforcer's legislation.

5

But a domestic enforcer may not exercise the power in paragraph 14 (power to require the production of information) for the purpose in sub-paragraph (4) unless an officer of the enforcer reasonably suspects a breach of the enforcer's legislation.

6

Sub-paragraph (5) does not apply if the enforcer is a market surveillance authority within the meaning of Article 2(18) of the Regulation on Accreditation and Market Surveillance and the power is exercised for the purpose of market surveillance within the meaning of Article 2(17) of that Regulation.

7

An unfair contract terms enforcer may exercise the powers in this Part of this Schedule for either of the following purposes—

a

to enable the enforcer to exercise or to consider whether to exercise any function it has under Schedule 3 (enforcement of the law on unfair contract terms and notices);

b

to ascertain whether a person has complied with or is complying with an injunction or interdict (within the meaning of that Schedule) granted under paragraph 5 of that Schedule or an undertaking given under paragraph 6 of that Schedule.

8

But an unfair contract terms enforcer may not exercise the power in paragraph 14 for a purpose mentioned in sub-paragraph (7)(a) unless an officer of the enforcer reasonably suspects that a person is using, or proposing or recommending the use of, a contractual term or notice within paragraph 3 of Schedule 3.

9

A local weights and measures authority in Great Britain F4, the Department of Enterprise, Trade and Investment in Northern Ireland or the Secretary of State may exercise the powers in this Part of this Schedule for either of the following purposes—

a

to enable it to determine whether to make an order under section 3 or 4 of the Estate Agents Act 1979;

b

to enable it to exercise any of its functions under section 5, 6, 8, 13 or 17 of that Act.

10

In this paragraph—

  • “Community enforcer” has the same meaning as in the Enterprise Act 2002 (see section 213(5) of that Act);

  • “private designated enforcer” means a person or body which—

    1. a

      is designated by order under subsection (2) of section 213 of that Act, and

    2. b

      has been designated by virtue of subsection (4) of that section (which provides that the Secretary of State may designate a person or body which is not a public body only if it satisfies criteria specified by order).

Power to require the production of information

I19I64I25714

An enforcer or an officer of an enforcer may give notice to a person requiring the person to provide the enforcer with the information specified in the notice.

Procedure for notice under paragraph 14

I20I65I25815

1

A notice under paragraph 14 must be in writing and specify the purpose for which the information is required.

2

If the purpose is to enable a person to exercise or to consider whether to exercise a function, the notice must specify the function concerned.

3

The notice may specify—

a

the time within which and the manner in which the person to whom it is given must comply with it;

b

the form in which information must be provided.

4

The notice may require—

a

the creation of documents, or documents of a description, specified in the notice, and

b

the provision of those documents to the enforcer or an officer of the enforcer.

5

A requirement to provide information or create a document is a requirement to do so in a legible form.

6

A notice under paragraph 14 does not require a person to provide any information or create any documents which the person would be entitled to refuse to provide or produce—

a

in proceedings in the High Court on the grounds of legal professional privilege, or

b

in proceedings in the Court of Session on the grounds of confidentiality of communications.

7

In sub-paragraph (6) “communications” means—

a

communications between a professional legal adviser and the adviser's client, or

b

communications made in connection with or in contemplation of legal proceedings or for the purposes of those proceedings.

Enforcement of notice under paragraph 14

I66I21I25916

1

If a person fails to comply with a notice under paragraph 14, the enforcer or an officer of the enforcer may make an application under this paragraph to the court.

2

If it appears to the court that the person has failed to comply with the notice, it may make an order under this paragraph.

3

An order under this paragraph is an order requiring the person to do anything that the court thinks it is reasonable for the person to do, for any of the purposes for which the notice was given, to ensure that the notice is complied with.

4

An order under this paragraph may require the person to meet the costs or expenses of the application.

5

If the person is a company, partnership or unincorporated association, the court in acting under sub-paragraph (4) may require an official who is responsible for the failure to meet the costs or expenses.

6

In this paragraph—

  • “the court” means—

    1. a

      the High Court,

    2. b

      in relation to England and Wales, the county court,

    3. c

      in relation to Northern Ireland, a county court,

    4. d

      the Court of Session, or

    5. e

      the sheriff;

  • “official” means—

    1. a

      in the case of a company, a director, manager, secretary or other similar officer,

    2. b

      in the case of a limited liability partnership, a member,

    3. c

      in the case of a partnership other than a limited liability partnership, a partner, and

    4. d

      in the case of an unincorporated association, a person who is concerned in the management or control of its affairs.

Limitations on use of information provided in response to a notice under paragraph 14

I22I67I26017

1

This paragraph applies if a person provides information in response to a notice under paragraph 14.

2

This includes information contained in a document created by a person in response to such a notice.

3

In any criminal proceedings against the person—

a

no evidence relating to the information may be adduced by or on behalf of the prosecution, and

b

no question relating to the information may be asked by or on behalf of the prosecution.

4

Sub-paragraph (3) does not apply if, in the proceedings—

a

evidence relating to the information is adduced by or on behalf of the person providing it, or

b

a question relating to the information is asked by or on behalf of that person.

5

Sub-paragraph (3) does not apply if the proceedings are for—

a

an offence under paragraph 36 (obstruction),

b

an offence under section 5 of the Perjury Act 1911 (false statutory declarations and other false statements without oath),

c

an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations), or

d

an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (SI 1979/1714 (NI 19)) (false statutory declarations and other false unsworn statements).

Application to Crown

I23I68I26118

In its application in relation to—

a

an enforcer acting for a purpose within paragraph 13(2) or (3), or

b

an enforcer acting for the purpose of ascertaining whether there has been a breach of the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277),

this Part binds the Crown.

PART 4Further powers exercisable by domestic enforcers and EU enforcers

Exercise of powers in this Part: domestic enforcers

I24I69I26219

1

A domestic enforcer may exercise a power in this Part of this Schedule only for the purposes and in the circumstances mentioned in this paragraph in relation to that power.

2

A domestic enforcer may exercise any power in paragraphs 21 to 26 and 31 to 34 for the purpose of ascertaining compliance with the enforcer's legislation.

3

A domestic enforcer may exercise the power in paragraph 27 (power to require the production of documents) for either of the following purposes—

a

subject to sub-paragraph (4), to ascertain compliance with the enforcer's legislation;

b

to ascertain whether the documents may be required as evidence in proceedings for a breach of, or under, the enforcer's legislation.

4

A domestic enforcer may exercise the power in paragraph 27 for the purpose mentioned in sub-paragraph (3)(a) only if an officer of the enforcer reasonably suspects a breach of the enforcer's legislation, unless—

a

the power is being exercised in relation to a document that the trader is required to keep by virtue of a provision of the enforcer's legislation, or

b

the enforcer is a market surveillance authority within the meaning of Article 2(18) of the Regulation on Accreditation and Market Surveillance and the power is exercised for the purpose of market surveillance within the meaning of Article 2(17) of that Regulation.

5

A domestic enforcer may exercise the power in paragraph 28 (power to seize and detain goods) in relation to—

a

goods which an officer of the enforcer reasonably suspects may disclose (by means of testing or otherwise) a breach of the enforcer's legislation,

b

goods which an officer of the enforcer reasonably suspects are liable to forfeiture under that legislation, and

c

goods which an officer of the enforcer reasonably suspects may be required as evidence in proceedings for a breach of, or under, that legislation.

6

A domestic enforcer may exercise the power in paragraph 29 (power to seize documents required as evidence) in relation to documents which an officer of the enforcer reasonably suspects may be required as evidence—

a

in proceedings for a breach of the enforcer's legislation, or

b

in proceedings under the enforcer's legislation.

7

A domestic enforcer may exercise the power in paragraph 30 (power to decommission or switch off fixed installations)—

a

if an officer of the enforcer reasonably suspects a breach of F38the Electromagnetic Compatibility Regulations 2016 (S.I. 2016/1091), and

b

for the purpose of ascertaining (by means of testing or otherwise) whether there has been such a breach.

8

For the purposes of the enforcement of the Estate Agents Act 1979—

a

the references in sub-paragraphs (2) and (3)(a) to ascertaining compliance with the enforcer's legislation include ascertaining whether a person has engaged in a practice mentioned in section 3(1)(d) of that Act (practice in relation to estate agency work declared undesirable by the Secretary of State), and

b

the references in sub-paragraph (4) and paragraphs 23(6)(a) and 32(3)(a) to a breach of the enforcer's legislation include references to a person's engaging in such a practice.

Exercise of powers in this Part: EU enforcers

I25I70I26320

1

Any power in this Part of this Schedule which is conferred on an EU enforcer may be exercised by such an enforcer only for the purposes and in the circumstances mentioned in this paragraph in relation to that power.

2

If the condition in sub-paragraph (3) is met, an EU enforcer may exercise any power conferred on it by paragraphs 21 to 25 and 31 to 34 for any purpose relating to the functions that the enforcer has under Part 8 of the Enterprise Act 2002 in its capacity as a CPC enforcer under that Part.

3

The condition is that an officer of the EU enforcer reasonably suspects—

a

that there has been, or is likely to be, a Community infringement,

b

a failure to comply with an enforcement order or an interim enforcement order made on the application of that enforcer,

c

a failure to comply with an undertaking given under section 217(9) or 218(10) of the Enterprise Act 2002 following such an application, or

d

a failure to comply with an undertaking given to that enforcer under section 219 of that Act.

4

An EU enforcer may exercise the power in paragraph 27 (power to require the production of documents) for either of the following purposes—

a

the purpose mentioned in sub-paragraph (2), if the condition in sub-paragraph (3) is met;

b

to ascertain whether the documents may be required as evidence in proceedings under Part 8 of the Enterprise Act 2002.

5

An EU enforcer may exercise the power in paragraph 28 (power to seize and detain goods) in relation to goods which an officer of the enforcer reasonably suspects—

a

may disclose (by means of testing or otherwise) a Community infringement or a failure to comply with a measure specified in sub-paragraph (3)(b), (c) or (d), or

b

may be required as evidence in proceedings under Part 8 of the Enterprise Act 2002.

6

An EU enforcer may exercise the power in paragraph 29 (power to seize documents required as evidence) in relation to documents which an officer of the enforcer reasonably suspects may be required as evidence in proceedings under Part 8 of the Enterprise Act 2002.

Power to purchase products

I71I26I26421

1

An officer of an enforcer may—

a

make a purchase of a product, or

b

enter into an agreement to secure the provision of a product.

2

For the purposes of exercising the power in sub-paragraph (1), an officer may—

a

at any reasonable time, enter premises to which the public has access (whether or not the public has access at that time), and

b

inspect any product on the premises which the public may inspect.

3

The power of entry in sub-paragraph (2) may be exercised without first giving notice or obtaining a warrant.

Power to observe carrying on of business etc

I27I72I26522

1

An officer of an enforcer may enter premises to which the public has access in order to observe the carrying on of a business on those premises.

2

The power in sub-paragraph (1) may be exercised at any reasonable time (whether or not the public has access at that time).

3

The power of entry in sub-paragraph (1) may be exercised without first giving notice or obtaining a warrant.

Power to enter premises without warrant

I28I73I26623

1

An officer of an enforcer may enter premises at any reasonable time.

2

Sub-paragraph (1) does not authorise the entry into premises used wholly or mainly as a dwelling.

3

In the case of a routine inspection, the power of entry in sub-paragraph (1) may only be exercised if a notice has been given to the occupier of the premises in accordance with the requirements in sub-paragraph (4), unless sub-paragraph (5) applies.

4

Those requirements are that—

a

the notice is in writing and is given by an officer of the enforcer,

b

the notice sets out why the entry is necessary and indicates the nature of the offence under paragraph 36 (obstruction), and

c

there are at least two working days between the date of receipt of the notice and the date of entry.

5

A notice need not be given if the occupier has waived the requirement to give notice.

6

In this paragraph “routine inspection” means an exercise of the power in sub-paragraph (1) other than where—

a

the power is exercised by an officer of a domestic enforcer who reasonably suspects a breach of the enforcer's legislation,

b

the officer reasonably considers that to give notice in accordance with sub-paragraph (3) would defeat the purpose of the entry,

c

it is not reasonably practicable in all the circumstances to give notice in accordance with that sub-paragraph, in particular because the officer reasonably suspects that there is an imminent risk to public health or safety, or

d

the enforcer is a market surveillance authority within the meaning of Article 2(18) of the Regulation on Accreditation and Market Surveillance and the entry is for the purpose of market surveillance within the meaning of Article 2(17) of that Regulation.

7

If an officer of an enforcer enters premises under sub-paragraph (1) otherwise than in the course of a routine inspection, and finds one or more occupiers on the premises, the officer must provide to that occupier or (if there is more than one) to at least one of them a document that—

a

sets out why the entry is necessary, and

b

indicates the nature of the offence under paragraph 36 (obstruction).

8

If an officer of an enforcer enters premises under sub-paragraph (1) and finds one or more occupiers on the premises, the officer must produce evidence of the officer's identity and authority to that occupier or (if there is more than one) to at least one of them.

9

An officer need not comply with sub-paragraph (7) or (8) if it is not reasonably practicable to do so.

10

Proceedings resulting from the exercise of the power under sub-paragraph (1) are not invalid merely because of a failure to comply with sub-paragraph (7) or (8).

11

An officer entering premises under sub-paragraph (1) may be accompanied by such persons, and may take onto the premises such equipment, as the officer thinks necessary.

12

In this paragraph—

  • “give”, in relation to the giving of a notice to the occupier of premises, includes delivering or leaving it at the premises or sending it there by post;

  • “working day” means a day other than—

    1. a

      Saturday or Sunday,

    2. b

      Christmas Day or Good Friday, or

    3. c

      a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the premises are situated.

Application of paragraphs 25 to 31

I29I74I26724

Paragraphs 25 to 31 apply if an officer of an enforcer has entered any premises under the power in paragraph 23(1) or under a warrant under paragraph 32.

Power to inspect products etc

I30I75I26825

1

The officer may inspect any product on the premises.

2

The power in sub-paragraph (3) is also available to an officer of a domestic enforcer acting pursuant to the duty in section 27(1) of the Consumer Protection Act 1987 or regulation 10(1) of the General Product Safety Regulations 2005 (SI 2005/1803).

3

The officer may examine any procedure (including any arrangements for carrying out a test) connected with the production of a product.

4

The powers in sub-paragraph (5) are also available to an officer of a domestic enforcer acting pursuant to—

a

the duty in regulation 10(1) of the Weights and Measures (Packaged Goods) Regulations 2006 (SI 2006/659) (“the (“2006 Regulations”), or

b

the duty in regulation 10(1) of the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 (SR 2011/331) (“the 2011 Regulations”).

5

The officer may inspect and take copies of, or of anything purporting to be—

a

a record of a kind mentioned in regulation 5(2) or 9(1), or

b

evidence of a kind mentioned in regulation 9(3).

6

The references in sub-paragraph (5) to regulations are to regulations in the 2006 Regulations in the case of a domestic enforcer in Great Britain or the 2011 Regulations in the case of a domestic enforcer in Northern Ireland.

7

The powers in sub-paragraph (8) are also available to an officer of a domestic enforcer acting pursuant to the duty in F37regulation 52(1)(a)(ii) or (b)(ii) of the Electromagnetic Compatibility Regulations (S.I. 2016/1091).

8

The officer may—

a

inspect any apparatus or fixed installation (as defined in those Regulations), or

b

examine any procedure (including any arrangements for carrying out a test) connected with the production of apparatus.

Power to test equipment

I31I76I26926

1

An officer of a domestic enforcer may test any weighing or measuring equipment—

a

which is, or which the officer has reasonable cause to believe may be, used for trade or in the possession of any person or on any premises for such use, or

b

which has been, or which the officer has reasonable cause to believe to have been, passed by an approved verifier, or by a person purporting to act as such a verifier, as fit for such use.

2

Expressions used in sub-paragraph (1) have the same meaning—

a

as in the Weights and Measures Act 1985, in the case of a domestic enforcer in Great Britain;

b

as in the Weights and Measures (Northern Ireland) Order 1981 (SI 1981/231 (NI 10)), in the case of a domestic enforcer in Northern Ireland.

3

The powers in sub-paragraph (4) are available to an officer of a domestic enforcer acting pursuant to—

a

the duty in regulation 10(1) of the Weights and Measures (Packaged Goods) Regulations 2006 (SI 2006/659) (“the 2006 Regulations”), or

b

the duty in regulation 10(1) of the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 (SR 2011/331) (“the 2011 Regulations”).

4

The officer may test any equipment which the officer has reasonable cause to believe is used in—

a

making up packages (as defined in regulation 2) in the United Kingdom, or

b

carrying out a check mentioned in paragraphs (1) and (3) of regulation 9.

5

The references in sub-paragraph (4) to regulations are to regulations in the 2006 Regulations in the case of a domestic enforcer in Great Britain or the 2011 Regulations in the case of a domestic enforcer in Northern Ireland.

Power to require the production of documents

I32I77I27027

1

The officer may, at any reasonable time—

a

require a trader occupying the premises, or a person on the premises acting on behalf of such a trader, to produce any documents relating to the trader's business to which the trader has access, and

b

take copies of, or of any entry in, any such document.

2

The power in sub-paragraph (1) is available regardless of whether—

a

the purpose for which the documents are required relates to the trader or some other person, or

b

the proceedings referred to in paragraph 19(3)(b) or 20(4)(b) could be taken against the trader or some other person.

3

That power includes power to require the person to give an explanation of the documents.

4

Where a document required to be produced under sub-paragraph (1) contains information recorded electronically, the power in that sub-paragraph includes power to require the production of a copy of the document in a form in which it can easily be taken away and in which it is visible and legible.

5

This paragraph does not permit an officer to require a person to create a document other than as described in sub-paragraph (4).

6

This paragraph does not permit an officer to require a person to produce any document which the person would be entitled to refuse to produce—

a

in proceedings in the High Court on the grounds of legal professional privilege, or

b

in proceedings in the Court of Session on the grounds of confidentiality of communications.

7

In sub-paragraph (6) “communications” means—

a

communications between a professional legal adviser and the adviser's client, or

b

communications made in connection with or in contemplation of legal proceedings or for the purposes of those proceedings.

8

In this paragraph “trader” has the same meaning as in Part 1 of this Act.

Power to seize and detain goods

I33I78I27128

1

The officer may seize and detain goods other than documents (for which see paragraph 29).

2

An officer seizing goods under this paragraph from premises which are occupied must produce evidence of the officer's identity and authority to an occupier of the premises before seizing them.

3

The officer need not comply with sub-paragraph (2) if it is not reasonably practicable to do so.

4

An officer seizing goods under this paragraph must take reasonable steps to—

a

inform the person from whom they are seized that they have been seized, and

b

provide that person with a written record of what has been seized.

5

If, under this paragraph, an officer seizes any goods from a vending machine, the duty in sub-paragraph (4) also applies in relation to—

a

the person whose name and address are on the vending machine as the owner of the machine, or

b

if there is no such name and address on the machine, the occupier of the premises on which the machine stands or to which it is fixed.

6

In determining the steps to be taken under sub-paragraph (4), an officer exercising a power under this paragraph in England and Wales or Northern Ireland must have regard to any relevant provision about the seizure of property made by—

a

a code of practice under section 66 of the Police and Criminal Evidence Act 1984, or

b

a code of practice under Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)),

(as the case may be).

7

Goods seized under this paragraph (except goods seized for a purpose mentioned in paragraph 19(5)(b)) may not be detained—

a

for a period of more than 3 months beginning with the day on which they were seized, or

b

where the goods are reasonably required to be detained for a longer period by the enforcer for a purpose for which they were seized, for longer than they are required for that purpose.

Power to seize documents required as evidence

I79I34I27229

1

The officer may seize and detain documents.

2

An officer seizing documents under this paragraph from premises which are occupied must produce evidence of the officer's identity and authority to an occupier of the premises before seizing them.

3

The officer need not comply with sub-paragraph (2) if it is not reasonably practicable to do so.

4

An officer seizing documents under this paragraph must take reasonable steps to—

a

inform the person from whom they are seized that they have been seized, and

b

provide that person with a written record of what has been seized.

5

In determining the steps to be taken under sub-paragraph (4), an officer exercising a power under this paragraph in England and Wales or Northern Ireland must have regard to any relevant provision about the seizure of property made by—

a

a code of practice under section 66 of the Police and Criminal Evidence Act 1984, or

b

a code of practice under Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)),

(as the case may be).

6

This paragraph does not confer any power on an officer to seize from a person any document which the person would be entitled to refuse to produce—

a

in proceedings in the High Court on the grounds of legal professional privilege, or

b

in proceedings in the Court of Session on the grounds of confidentiality of communications.

7

In sub-paragraph (6) “communications” means—

a

communications between a professional legal adviser and the adviser's client, or

b

communications made in connection with or in contemplation of legal proceedings or for the purposes of those proceedings.

8

Documents seized under this paragraph may not be detained—

a

for a period of more than 3 months beginning with the day on which they were seized, or

b

where the documents are reasonably required to be detained for a longer period by the enforcer for the purposes of the proceedings for which they were seized, for longer than they are required for those purposes.

Power to decommission or switch off fixed installations

I35I80I27330

1

The power in sub-paragraph (2) is available to an officer of a domestic enforcer acting pursuant to the duty in F36regulation 52(1)(a)(ii) or (b)(ii) of the Electromagnetic Compatibility Regulations (S.I. 2016/1091).

2

The officer may decommission or switch off any fixed installation (as defined in those Regulations) or part of such an installation.

Power to break open container etc

I36I81I27431

1

The officer may, for the purpose of exercising any of the powers in paragraphs 28 to 30, require a person with authority to do so to—

a

break open any container,

b

open any vending machine, or

c

access any electronic device in which information may be stored or from which it may be accessed.

2

Where a requirement under sub-paragraph (1) has not been complied with, the officer may, for the purpose of exercising any of the powers in paragraphs 28 to 30—

a

break open the container,

b

open the vending machine, or

c

access the electronic device.

3

Sub-paragraph (1) or (2) applies if and to the extent that the exercise of the power in that sub-paragraph is reasonably necessary for the purposes for which that power may be exercised.

4

In this paragraph “container” means anything in which goods may be stored.

Power to enter premises with warrant

I37I82I27532

1

A justice of the peace may issue a warrant authorising an officer of an enforcer to enter premises if satisfied, on written information on oath given by such an officer, that there are reasonable grounds for believing that—

a

condition A or B is met, and

b

condition C, D or E is met.

2

Condition A is that on the premises there are—

a

products which an officer of the enforcer has power to inspect under paragraph 25, or

b

documents which an officer of the enforcer could require a person to produce under paragraph 27.

3

Condition B is that, on the premises—

a

in the case of a domestic enforcer, there has been or is about to be a breach of the enforcer's legislation,

b

in the case of an EU enforcer, there has been or is about to be a Community infringement as defined in section 212 of the Enterprise Act 2002, or

c

in the case of an EU enforcer, there has been a failure to comply with a measure specified in paragraph 20(3)(b), (c) or (d).

4

Condition C is that—

a

access to the premises has been or is likely to be refused, and

b

notice of the enforcer's intention to apply for a warrant under this paragraph has been given to the occupier of the premises.

5

Condition D is that it is likely that products or documents on the premises would be concealed or interfered with if notice of entry on the premises were given to the occupier of the premises.

6

Condition E is that—

a

the premises are unoccupied, or

b

the occupier of the premises is absent, and it might defeat the purpose of the entry to wait for the occupier's return.

7

In the application of this paragraph to Scotland—

a

the reference in sub-paragraph (1) to a justice of the peace is to be read as a reference to a sheriff, and

b

the reference in that sub-paragraph to information on oath is to be read as a reference to evidence on oath.

8

In the application of this paragraph to Northern Ireland—

a

the reference in sub-paragraph (1) to a justice of the peace is to be read as a reference to a lay magistrate, and

b

the reference in that sub-paragraph to written information is to be read as a reference to a written complaint.

Entry to premises under warrant

I38I83I27633

1

A warrant under paragraph 32 authorises an officer of the enforcer to enter the premises at any reasonable time, using reasonable force if necessary.

2

A warrant under that paragraph ceases to have effect at the end of the period of one month beginning with the day it is issued.

3

An officer entering premises under a warrant under paragraph 32 may be accompanied by such persons, and may take onto the premises such equipment, as the officer thinks necessary.

4

If the premises are occupied when the officer enters them, the officer must produce the warrant for inspection to an occupier of the premises.

5

Sub-paragraph (6) applies if the premises are unoccupied or the occupier is temporarily absent.

6

On leaving the premises the officer must—

a

leave a notice on the premises stating that the premises have been entered under a warrant under paragraph 32, and

b

leave the premises as effectively secured against trespassers as the officer found them.

Power to require assistance from person on premises

I84I39I27734

1

If an officer of an enforcer has entered premises under the power in paragraph 23(1) or under a warrant under paragraph 32, the officer may require any person on the premises to provide such assistance or information as the officer reasonably considers necessary.

2

Sub-paragraph (3) applies if an officer of a domestic enforcer has entered premises under the power in paragraph 23(1) or under a warrant under paragraph 32 for the purposes of the enforcement of—

a

the Weights and Measures (Packaged Goods) Regulations 2006 (SI 2006/659), or

b

the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 (SR 2011/331).

3

The officer may, in particular, require any person on the premises to provide such information as the person possesses about the name and address of the packer and of any importer of a package which the officer finds on the premises.

4

In sub-paragraph (3) “importer”, “package” and “packer” have the same meaning as in—

a

the Weights and Measures (Packaged Goods) Regulations 2006 (see regulation 2), in the case of a domestic enforcer in Great Britain, or

b

the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 (see regulation 2), in the case of a domestic enforcer in Northern Ireland.

Definitions for purposes of this Part

I40I85I27835

In this Part of this Schedule—

  • “goods” has the meaning given by section 2(8);

  • “occupier”, in relation to premises, means any person an officer of an enforcer reasonably suspects to be the occupier of the premises;

  • “premises” includes any stall, vehicle, vessel or aircraft;

  • “product” means—

    1. a

      goods,

    2. b

      a service,

    3. c

      digital content, as defined in section 2(9),

    4. d

      immovable property, or

    5. e

      rights or obligations.

PART 5Provisions supplementary to Parts 3 and 4

Offence of obstruction

I41I86I27936

1

A person commits an offence if the person—

a

intentionally obstructs an enforcer or an officer of an enforcer who is exercising or seeking to exercise a power under Part 4 of this Schedule in accordance with that Part,

b

intentionally fails to comply with a requirement properly imposed by an enforcer or an officer of an enforcer under Part 4 of this Schedule, or

c

without reasonable cause fails to give an enforcer or an officer of an enforcer any other assistance or information which the enforcer or officer reasonably requires of the person for a purpose for which the enforcer or officer may exercise a power under Part 4 of this Schedule.

2

A person commits an offence if, in giving information of a kind referred to in sub-paragraph (1)(c), the person—

a

makes a statement which the person knows is false or misleading in a material respect, or

b

recklessly makes a statement which is false or misleading in a material respect.

3

A person who is guilty of an offence under sub-paragraph (1) or (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

4

Nothing in this paragraph requires a person to answer any question or give any information if to do so might incriminate that person.

Offence of purporting to act as officer

I42I87I28037

1

A person who is not an officer of an enforcer commits an offence if the person purports to act as such under Part 3 or 4 of this Schedule.

2

A person who is guilty of an offence under sub-paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

3

If section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force on or before the day on which this Act is passed—

a

section 85 of that Act (removal of limit on certain fines on conviction by magistrates' court) applies in relation to the offence in this paragraph as if it were a relevant offence (as defined in section 85(3) of that Act), and

b

regulations described in section 85(11) of that Act may amend or otherwise modify sub-paragraph (2).

Access to seized goods and documents

I88I43I281C238

1

This paragraph applies where anything seized by an officer of an enforcer under Part 4 of this Schedule is detained by the enforcer.

2

If a request for permission to be granted access to that thing is made to the enforcer by a person who had custody or control of it immediately before it was seized, the enforcer must allow that person access to it under the supervision of an officer of the enforcer.

3

If a request for a photograph or copy of that thing is made to the enforcer by a person who had custody or control of it immediately before it was seized, the enforcer must—

a

allow that person access to it under the supervision of an officer of the enforcer for the purpose of photographing or copying it, or

b

photograph or copy it, or cause it to be photographed or copied.

4

Where anything is photographed or copied under sub-paragraph (3), the photograph or copy must be supplied to the person who made the request within a reasonable time from the making of the request.

5

This paragraph does not require access to be granted to, or a photograph or copy to be supplied of, anything if the enforcer has reasonable grounds for believing that to do so would prejudice the investigation for the purposes of which it was seized.

6

An enforcer may recover the reasonable costs of complying with a request under this paragraph from the person by whom or on whose behalf it was made.

7

References in this paragraph to a person who had custody or control of a thing immediately before it was seized include a representative of such a person.

Notice of testing of goods

I89I44I282C139

1

Sub-paragraphs (3) and (4) apply where goods purchased by an officer of a domestic enforcer under paragraph 21 are submitted to a test and as a result—

a

proceedings are brought for a breach of, or under, the enforcer's legislation or for the forfeiture of the goods by the enforcer, or

b

a notice is served by the enforcer preventing a person from doing any thing.

2

Sub-paragraphs (3) and (4) also apply where goods seized by an officer of a domestic enforcer under paragraph 28 are submitted to a test.

3

The enforcer must inform the relevant person of the results of the test.

4

The enforcer must allow a relevant person to have the goods tested if it is reasonably practicable to do so.

5

In sub-paragraph (3) “relevant person” means the person from whom the goods were purchased or seized or, where the goods were purchased or seized from a vending machine—

a

the person whose name and address are on the vending machine as the owner of the machine, or

b

if there is no such name and address on the machine, the occupier of the premises on which the machine stands or to which it is fixed.

6

In sub-paragraph (4) “relevant person” means—

a

a person within sub-paragraph (5),

b

in a case within sub-paragraph (1)(a), a person who is a party to the proceedings, and

c

in a case within sub-paragraph (1)(b), a person with an interest in the goods.

Appeals against detention of goods and documents

I90I45I28340

1

This paragraph applies where goods or documents are being detained as the result of the exercise of a power in Part 4 of this Schedule.

2

A person with an interest in the goods or documents may apply for an order requiring them to be released to that or another person.

3

An application under this paragraph may be made in England and Wales or Northern Ireland—

a

to any magistrates' court in which proceedings have been brought for an offence as the result of the investigation in the course of which the goods or documents were seized,

b

to any magistrates' court in which proceedings have been brought for the forfeiture of the goods or documents or (in the case of seized documents) any goods to which the documents relate, or

c

if no proceedings within paragraph (a) or (b) have been brought, by way of complaint to a magistrates' court.

4

An application under this paragraph may be made in Scotland by summary application to the sheriff.

5

On an application under this paragraph, the court or sheriff may make an order requiring goods to be released only if satisfied that condition A or B is met.

6

Condition A is that—

a

no proceedings have been brought—

i

for an offence as the result of the investigation in the course of which the goods or documents were seized, or

ii

for the forfeiture of the goods or documents or (in the case of seized documents) any goods to which the documents relate, and

b

the period of 6 months beginning with the date the goods or documents were seized has expired.

7

Condition B is that—

a

proceedings of a kind mentioned in sub-paragraph (6)(a) have been brought, and

b

those proceedings have been concluded without the goods or documents being forfeited.

8

A person aggrieved by an order made under this paragraph by a magistrates' court, or by the decision of a magistrates' court not to make such an order, may appeal against the order or decision—

a

in England and Wales, to the Crown Court;

b

in Northern Ireland, to a county court.

9

An order made under this paragraph by a magistrates' court may contain such provision as the court thinks appropriate for delaying its coming into force pending the making and determination of any appeal.

10

In sub-paragraph (9) “appeal” includes an application under section 111 of the Magistrates' Courts Act 1980 or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (SI 1981/1675 (NI 26)) (statements of case).

Compensation

I46I91I284C341

1

This paragraph applies where an officer of an enforcer has seized and detained goods under Part 4 of this Schedule for a purpose within paragraph 19(5)(a) or 20(5)(a).

2

The enforcer must pay compensation to any person with an interest in the goods in respect of any loss or damage caused by the seizure and detention, if the condition in sub-paragraph (3) or (4) that is relevant to the enforcer is met.

3

The condition that is relevant to a domestic enforcer is that—

a

the goods have not disclosed a breach of the enforcer's legislation, and

b

the power to seize and detain the goods was not exercised as a result of any neglect or default of the person seeking the compensation.

4

The condition that is relevant to an EU enforcer is that—

a

the goods have not disclosed a Community infringement or a failure to comply with a measure specified in paragraph 20(3)(b), (c) or (d), and

b

the power to seize and detain the goods was not exercised as a result of any neglect or default of the person seeking the compensation.

5

Any dispute about the right to or amount of any compensation payable under this paragraph is to be determined—

a

in England and Wales or Northern Ireland, by arbitration, or

b

in Scotland, by a single arbitrator appointed by the parties or, if there is no agreement between the parties as to that appointment, by the sheriff.

Meaning of “goods” in this Part

I92I47I28542

In this Part of this Schedule “goods” does not include a document.

PART 6Exercise of enforcement functions by area enforcers

Interpretation of this Part

I93I48I28643

In this Part, “area enforcer” means—

a

a local weights and measures authority in Great Britain,

b

a district council in England, or

c

a district council in Northern Ireland.

Investigatory powers

I49I94I28744

1

Sub-paragraphs (3) to (6) apply in relation to an area enforcer's exercise, in accordance with this Schedule, of a power in Part 3 or 4 of this Schedule.

2

Sub-paragraphs (3) to (6) also apply in relation to an area enforcer's exercise of an investigatory power—

a

conferred by legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, the area enforcer has a duty or power to enforce, or conferred by legislation under which such legislation is made, or

b

conferred by legislation listed in the second column of the table in paragraph 11 of this Schedule,

for the purpose of ascertaining whether there has been a breach of that legislation or of any notice issued by the area enforcer under that legislation.

3

A local weights and measures authority in England or Wales may exercise the power in a part of England or Wales which is outside that authority's area.

4

A local weights and measures authority in Scotland may exercise the power in a part of Scotland which is outside that authority's area.

5

A district council in England may exercise the power in a part of England which is outside that council's district.

6

A district council in Northern Ireland may exercise the power in a part of Northern Ireland which is outside that council's district.

Civil proceedings

I95I50I28845

1

Sub-paragraphs (4) to (7) apply in relation to civil proceedings which may be brought by an area enforcer under—

a

Part 8 of the Enterprise Act 2002,

b

Schedule 3 to this Act,

c

legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, the area enforcer has a duty or power to enforce,

d

legislation under which legislation mentioned in paragraph (c) is made, or

e

legislation listed in the second column of the table in paragraph 11 of this Schedule.

2

Sub-paragraphs (4) to (7) also apply in relation to an application for forfeiture which may be made by an area enforcer, in circumstances where there are no related criminal proceedings,—

a

under section 35ZC of the Registered Designs Act 1949,

b

under section 16 of the Consumer Protection Act 1987,

c

under section 97 of the Trade Marks Act 1994 (including as applied by section 11 of the Olympic Symbol etc (Protection) Act 1995), or

d

under legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, the area enforcer has a duty or power to enforce.

3

In sub-paragraphs (4), (5), (6) and (7), the reference to civil proceedings includes a reference to an application mentioned in sub-paragraph (2).

4

A local weights and measures authority in England or Wales may bring civil proceedings in respect of conduct in a part of England or Wales which is outside that authority's area.

5

A local weights and measures authority in Scotland may bring civil proceedings in respect of conduct in a part of Scotland which is outside that authority's area.

6

A district council in England may bring civil proceedings in respect of conduct in a part of England which is outside that council's district.

7

A district council in Northern Ireland may bring civil proceedings in respect of conduct in a part of Northern Ireland which is outside that council's district.

Criminal proceedings

I51I96I28946

1

A local weights and measures authority in England or Wales may bring proceedings for a consumer offence allegedly committed in a part of England or Wales which is outside that authority's area.

2

In sub-paragraph (1) “a consumer offence” means—

a

an offence under legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, a local weights and measures authority in England or Wales has a duty or power to enforce,

b

an offence under legislation under which legislation within paragraph (a) is made,

c

an offence under legislation listed in the second column of the table in paragraph 11 of this Schedule in relation to which a local weights and measures authority is listed in the corresponding entry in the first column of the table as an enforcer,

d

an offence originating from an investigation into a breach of legislation mentioned in paragraph (a), (b) or (c), or

e

an offence described in paragraph 36 or 37 of this Schedule.

3

A district council in England may bring proceedings for a consumer offence allegedly committed in a part of England which is outside that council's district.

4

In sub-paragraph (3) “a consumer offence” means—

a

an offence under legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, a district council in England has a duty or power to enforce,

b

an offence under legislation under which legislation within paragraph (a) is made,

c

an offence originating from an investigation into a breach of legislation mentioned in paragraph (a) or (b), or

d

an offence described in paragraph 36 or 37 of this Schedule.

5

A district council in Northern Ireland may bring proceedings for a consumer offence allegedly committed in a part of Northern Ireland which is outside that council's district.

6

In sub-paragraph (5) “a consumer offence” means—

a

an offence under legislation which, by virtue of a provision listed in paragraph 10 of this Schedule, a district council in Northern Ireland has a duty or power to enforce,

b

an offence under legislation under which legislation within paragraph (a) is made,

c

an offence originating from an investigation into a breach of legislation mentioned in paragraph (a) or (b), or

d

an offence described in paragraph 36 or 37 of this Schedule.

SCHEDULE 6Investigatory powers: consequential amendments

Section 77

Registered Designs Act 1949 (c. 88)

I2901

1

Section 35ZB of the Registered Designs Act 1949 (enforcement) is amended as follows.

2

Omit subsection (1).

3

Before subsection (2) insert—

1A

For the investigatory powers available to a local weights and measures authority or the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the enforcement of section 35ZA, see Schedule 5 to the Consumer Rights Act 2015.

Trade Descriptions Act 1968 (c. 29)

I2912

The Trade Descriptions Act 1968 is amended as follows.

I2923

In section 26 (enforcing authorities) after subsection (1) insert—

1A

For the investigatory powers available to a local weights and measures authority for the purposes of the duty in subsection (1), see Schedule 5 to the Consumer Rights Act 2015.

I2934

Omit section 27 (power to make test purchases).

I2945

Omit section 28 (power to enter premises and inspect and seize goods and documents).

I2956

Omit section 29 (obstruction of authorised officers).

I2967

Omit section 30 (notice of test and intended prosecution).

I2978

Omit section 33 (compensation for loss, etc of goods seized under section 28).

I2989

1

Section 40 (provisions as to Northern Ireland) is amended as follows.

2

In subsection (1), omit paragraph (c).

3

After subsection (1) insert—

1A

For the investigatory powers available to the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the duty in subsection (1)(b), see Schedule 5 to the Consumer Rights Act 2015.

Hallmarking Act 1973 (c. 43)

I29910

1

Section 9 of the Hallmarking Act 1973 (enforcement of Act) is amended as follows.

2

After subsection (2) insert—

2A

For the investigatory powers available to a local weights and measures authority, the Council and an assay office for the purposes of the duty in subsection (1) and the power in subsection (2), see Schedule 5 to the Consumer Rights Act 2015.

3

Omit subsections (3), (4) and (7).

Prices Act 1974 (c. 24)

I30011

1

The Schedule to the Prices Act 1974 (enforcement) is amended as follows.

2

Omit paragraphs 3, 7, 9 and 10.

3

In paragraph 14(1) omit “and paragraph 10 above shall be omitted”.

4

After paragraph 14 insert—

15

For the investigatory powers available to a local weights and measures authority or the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the duty in paragraph 6, see Schedule 5 to the Consumer Rights Act 2015.

Consumer Credit Act 1974 (c. 39)

I30112

The Consumer Credit Act 1974 is amended as follows.

I30213

In section 161 (enforcement authorities), after subsection (1A) insert—

1B

For the investigatory powers available to a local weights and measures authority or the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the duty in subsection (1), see Schedule 5 to the Consumer Rights Act 2015.

I30314

Omit section 162 (powers of entry and inspection).

I30415

Omit section 163 (compensation for loss).

I30516

Omit section 164 (power to make test purchases etc).

I30617

Omit section 165 (obstruction of authorised officers).

I30718

In Schedule 1 (prosecution and punishment of offences) omit the entries for sections 162(6), 165(1) and 165(2).

Estate Agents Act 1979 (c. 38)

I30819

The Estate Agents Act 1979 is amended as follows.

I30920

In section 3(1)(cb) (power to make orders prohibiting unfit persons from doing estate agency work: failure to comply with section 9(1) or 11(1A)(b)) for “section 9(1) or 11(1A)(b) below” substitute “ paragraph 14 or 27 of Schedule 5 to the Consumer Rights Act 2015 ”.

I31021

In section 9 (information for the lead enforcement authority) omit subsections (1) to (4).

I31122

Omit section 11 (powers of entry and inspection).

I31223

Omit section 11A (failure to produce information).

I31324

In section 26 (enforcement authorities), after subsection (1) insert—

1A

For the investigatory powers available to an authority for the purposes of the duty in subsection (1), see Schedule 5 to the Consumer Rights Act 2015.

I31425

Omit section 27 (obstruction and personation of authorised officers).

I31526

1

Paragraph 14 of Schedule 2 (applications under sections 6(1) and 8(3)) is amended as follows.

2

For “section 9 of this Act” substitute “ paragraph 14 of Schedule 5 to the Consumer Rights Act 2015 ”.

3

Omit “or the production of documents”.

Video Recordings Act 1984 (c. 39)

I31627

1

Section 16A of the Video Recordings Act 1984 (enforcement) is amended as follows.

2

Omit subsections (1A), (1B) and (2).

3

In subsection (4)—

a

for “Subsections (1) and (1A)” substitute “ Subsection (1) ”, and

b

omit the words from “For that purpose” to the end of the subsection.

4

After that subsection insert—

4ZA

For the investigatory powers available to a local weights and measures authority or the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the functions in this section, see Schedule 5 to the Consumer Rights Act 2015.

5

Omit subsection (4A).

Weights and Measures Act 1985 (c. 72)

I31728

The Weights and Measures Act 1985 is amended as follows.

I31829

In section 38(2) (special powers of inspectors with respect to certain goods) for “section 79 below” substitute “ Schedule 5 to the Consumer Rights Act 2015 ”.

I31930

Omit section 42 (power to make test purchases).

I32031

Omit section 79 (general powers of inspection and entry).

I32132

Before section 80 insert—

79AInvestigatory powers

For the investigatory powers available to a local weights and measures authority for the purposes of the enforcement of this Act, see Schedule 5 to the Consumer Rights Act 2015.

I32233

In section 80 omit “or the packaged goods regulations”.

I32334

In section 81(1)(b) (failure to provide assistance or information) omit “or under this Part of this Act”.

I32435

1

Section 84 (penalties) is amended as follows.

2

In subsection (2), after the entry for section 20(8) insert—

section 80;

section 81(1);

section 81(2);

3

Omit subsection (5).

I32536

In paragraph 21(2)(b) of Schedule 11 (application of provisions applying to inspectors to persons authorised under the Weights and Measures Act 1963) omit “and except in section 79(3)”.

Consumer Protection Act 1987 (c. 43)

I32637

The Consumer Protection Act 1987 is amended as follows.

I32738

In section 27 (enforcement) after subsection (3) insert—

3A

For the investigatory powers available to a person for the purposes of the duty imposed by subsection (1), see Schedule 5 to the Consumer Rights Act 2015 (as well as section 29).

I32839

Omit section 28 (test purchases).

I32940

1

Section 29 (powers of search etc) is amended as follows.

2

In subsection (1) for “any of the powers conferred by the following provisions of this section” substitute “ the power conferred by subsection (4) ”.

3

Omit subsections (2), (3), (5) and (6).

4

In subsection (7) omit—

a

“, (5) or (6)”, and

b

“or records”.

I33041

1

Section 30 (provisions supplemental to section 29) is amended as follows.

2

In subsection (1)—

a

for “29” substitute “ 29(4) ”, and

b

omit “or records” in both places.

3

In subsection (2)(a)(i)—

a

omit “goods or”, and

b

for “29” substitute “ 29(4) ”.

4

In subsection (3) omit “section 29 above or”.

5

In each of subsections (5), (6) and (7) for “29” substitute “ 29(4) ”.

I33142

In section 31(1) (power of customs officer to detain goods) for “or under this Part” substitute “ section 29(4) of this Act or Schedule 5 to the Consumer Rights Act 2015 ”.

I33243

In section 32(1) (obstruction of authorised officer)—

a

in paragraph (a)—

i

for “any provision of this Part” substitute “ section 29(4) ”, and

ii

for “so acting” substitute “ acting in pursuance of section 31 ”,

b

in paragraph (b) for “any provision of this Part” substitute “ section 29(4) ”, and

c

in paragraph (c) for “any provision of this Part” substitute “ section 29(4) ”.

I33344

In section 33(1) (appeals against detention of goods) for “any provision of this Part” substitute “ section 29(4) ”.

I33445

In section 34(1) (compensation for seizure and detention) for “29” substitute “ 29(4) ”.

I33546

In section 44(4) (service of documents)—

a

omit “28(2) or”, and

b

omit “purchased or” in each place.

Education Reform Act 1988 (c. 40)

I33647

1

Section 215 of the Education Reform Act 1988 (unrecognised degrees: enforcement) is amended as follows.

2

After that section insert—

1A

For the investigatory powers available to a local weights and measures authority for the purposes of the duty to enforce imposed by subsection (1), see Schedule 5 to the Consumer Rights Act 2015.

3

Omit subsections (2) to (8).

Clean Air Act 1993 (c. 11)

I34051

The Clean Air Act 1993 is amended as follows.

I34152

1

Section 30 (regulations about motor fuel) is amended as follows.

2

Omit subsection (5).

3

Before subsection (6) insert—

5A

For the investigatory powers available to a local weights and measures authority for the purposes of the duty in subsection (4), see Schedule 5 to the Consumer Rights Act 2015.

4

Omit subsection (8).

5

Before subsection (9) insert—

8A

For the investigatory powers available to the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the duty in subsection (7), see Schedule 5 to the Consumer Rights Act 2015.

I34253

In section 31 (regulations about sulphur content of oil fuel for furnaces or engines) after subsection (4) insert—

4A

For the investigatory powers available to a local authority for the purposes of the duty in subsection (4)(a), see Schedule 5 to the Consumer Rights Act 2015.

I34354

In section 32(4) (powers of entry not to apply in relation to persons in the public service of the Crown) for “sections 56 to 58 (rights of entry and inspection and other local authority powers)” substitute “ Schedule 5 to the Consumer Rights Act 2015 (investigatory powers) ”.

I34455

In section 49(1) (unjustified disclosures of information) after “this Act” insert “ or in the exercise of a power in Schedule 5 to the Consumer Rights Act 2015 for the purposes of the duty in section 30(4) or (7) or 31(4)(a) of this Act ”.

I34556

In section 56 (rights of entry and inspection etc) after subsection (6) insert—

7

This section does not apply in relation to—

a

a function conferred on a local authority by Part 4, or

b

a provision of an instrument made under that Part.

I34657

In section 58(1) (power of local authorities to obtain information)—

a

omit “IV or”, and

b

for “those Parts” substitute “ that Part ”.

Sunday Trading Act 1994 (c. 20)

I34758

1

Part 1 of Schedule 2 to the Sunday Trading Act 1994 (general enforcement provisions) is amended as follows.

2

Omit paragraphs 3 and 4.

3

Before paragraph 5 insert—

Investigatory powers

4A

For the investigatory powers available to a local authority and the inspectors appointed by it under paragraph 2 for the purposes of the duty in paragraph 1, see Schedule 5 to the Consumer Rights Act 2015.

Trade Marks Act 1994 (c. 26)

I34859

1

Section 93 of the Trade Marks Act 1994 (enforcement function of local weights and measures authority) is amended as follows.

2

Omit subsection (2).

3

In subsection (3) omit the words from “For that purpose” to the end of the subsection.

4

After that subsection insert—

3A

For the investigatory powers available to a local weights and measures authority or the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the duties in this section, see Schedule 5 to the Consumer Rights Act 2015.

Olympic Symbol etc (Protection) Act 1995 (c. 32)

I34960

1

Section 8A of the Olympic Symbol etc (Protection) Act 1995 is amended as follows.

2

Omit subsection (2).

3

In subsection (3) omit paragraph (b) and the “and” immediately preceding that paragraph.

4

After that subsection insert—

3A

For the investigatory powers available to a local weights and measures authority or the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the powers in this section, see Schedule 5 to the Consumer Rights Act 2015.

Criminal Justice and Police Act 2001 (c. 16)

I35061

The Criminal Justice and Police Act 2001 is amended as follows.

I35162

In section 57(1) (retention of seized items)—

a

omit paragraphs (d), (g) and (pa), and

b

after paragraph (r) insert—

s

paragraphs 28(7) and 29(8) of Schedule 5 to the Consumer Rights Act 2015

I35263

1

Section 65 (meaning of legal privilege) is amended as follows.

2

Omit subsections (6) and (8A).

3

Before subsection (9) insert—

8B

An item which is, or is comprised in, property which has been seized in exercise or purported exercise of the power of seizure conferred by paragraph 27(1)(b) or 29(1) of Schedule 5 to the Consumer Rights Act 2015 shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the seizure of that item was in contravention of paragraph 27(6) or (as the case may be) 29(6) of that Schedule (privileged documents).

4

In subsection (9)—

a

omit paragraph (c),

b

at the end of paragraph (d) insert “ or ”, and

c

omit paragraph (f) and the “or” immediately preceding that paragraph.

I35364

In section 66(4) (construction of references to a search)—

a

omit paragraphs (a), (c), (d), (e), (f), (g), (ma), (q), (r) and (s),

b

in paragraph (h) for “29” substitute “ 29(4) ”,

c

in paragraph (o) for “22” substitute “ 22(4) ”, and

d

after paragraph (p) insert—

t

Part 4 of Schedule 5 to the Consumer Rights Act 2015

I35465

1

Part 1 of Schedule 1 (powers to which section 50 applies) is amended as follows.

2

Omit—

a

paragraph 9,

b

paragraph 16,

c

paragraph 18,

d

paragraph 19,

e

paragraph 24,

f

paragraph 36,

g

paragraph 73BA,

h

the first paragraph 73G,

i

the second paragraph 73J,

j

the second paragraph 73K,

k

paragraph 73N, and

l

paragraph 73O.

3

In paragraph 45 for “29(4), (5) and (6)” substitute “ 29(4) ”.

4

In the second paragraph 73G for “22(4) to (6)” substitute “ 22(4) ”.

5

After paragraph 73M insert—

Consumer Rights Act 2015

73P

Each of the powers of seizure conferred by paragraphs 27(1)(b), 28(1) and 29(1) of Schedule 5 to the Consumer Rights Act 2015.

I35566

1

Part 1 of Schedule 2 (application of enactments) is amended as follows.

2

Omit paragraphs 1, 4B, 4C, 5, 7, 9B and 9C.

3

In paragraph 3 for “29” in each place substitute “ 29(4) ”.

4

In paragraph 4A—

a

for “23” substitute “ 22(4) ”, and

b

for “22” substitute “ 22(4) ”.

5

After paragraph 4A insert—

4D

Paragraph 39 of Schedule 5 to the Consumer Rights Act 2015 (notice of testing of goods) shall apply in relation to items seized under section 50 of this Act in reliance on the power of seizure conferred by paragraph 28(1) of that Schedule as it applies in relation to goods seized under that paragraph.

Access to seized items

4E

Subject to section 61 of this Act, paragraph 38 of Schedule 5 to the Consumer Rights Act 2015 (access to seized goods and documents) shall apply in relation to items seized under section 50 of this Act in reliance on the power of seizure conferred by paragraph 28(1) or 29(1) of that Schedule as it applies in relation to things seized under Part 4 of that Schedule.

6

In paragraph 8 for “29” in each place substitute “ 29(4) ”.

7

In paragraph 9A—

a

for the first “22” substitute “ 22(4) ”, and

b

for “products under regulations 22 of those Regulations.” substitute “ those items, as it applies to the seizure and detention of products under regulation 22(4) of those Regulations. ”

8

After paragraph 9A insert—

9D

Paragraph 41 of Schedule 5 to the Consumer Rights Act 2015 (compensation for seizure and detention) shall apply in relation to the seizure of items under section 50 of this Act in reliance on the power of seizure conferred by paragraph 28(1) or 29(1) of that Schedule, and the retention of those items, as it applies in relation to the seizure and detention of goods under Part 4 of that Schedule.

Enterprise Act 2002 (c. 40)

I35667

The Enterprise Act 2002 is amended as follows.

I35768

Omit section 224 (power of CMA to require the provision of information).

I35869

Omit section 225 (power of other enforcer to require the provision of information).

I35970

Omit section 226 (procedure for notices requiring information).

I36071

Omit section 227 (enforcement of notices).

I36172

Omit section 227A (power to enter premises without warrant).

I36273

Omit section 227B (powers exercisable on the premises).

I36374

Omit section 227C (power to enter premises with warrant).

I36475

Omit section 227D (ancillary provisions about powers of entry).

I36576

Omit section 227E (obstructing, or failing to co-operate with, powers of entry).

I36677

Omit section 227F (retention of documents and goods).

I36778

Before section 228 (but after the italic heading “Miscellaneous”) insert—

223AInvestigatory powers

For the investigatory powers available to enforcers for the purposes of enforcers' functions under this Part, see Schedule 5 to the Consumer Rights Act 2015.

I36879

In section 228 (evidence) omit subsection (4).

I36980

In section 236 (application of Part 8 to Crown) omit subsection (2).

I37081

In Schedule 14 (specified functions for the purposes of Part 9 restrictions on disclosure), at the end insert— “ Paragraph 13(2), (3) or (7) of Schedule 5 to the Consumer Rights Act 2015. ”

Fireworks Act 2003 (c. 22)

I37182

1

Section 12 of the Fireworks Act 2003 (enforcement) is amended as follows.

2

In subsection (2)—

a

omit paragraph (a), and

b

in paragraph (b), for “29(1) to (5), (6)(a) and (7)” substitute “ 29(4) and (7) ”.

3

After subsection (2) insert—

2A

For the investigatory powers available to a person for the purposes of the duty to enforce imposed by virtue of subsection (1) (in addition to the powers in Part 4 of the Consumer Protection Act 1987), see Schedule 5 to the Consumer Rights Act 2015.

Christmas Day (Trading) Act 2004 (c. 26)

I37283

1

Section 3 of the Christmas Day (Trading) Act 2004 (enforcement) is amended as follows.

2

Omit subsection (3).

3

Before subsection (4) insert—

3A

For the powers available to a local authority and the inspectors appointed by it under subsection (3) for the purposes of the duty in subsection (1), see Schedule 5 to the Consumer Rights Act 2015.

Financial Services Act 2012 (c. 21)

I37384

1

Section 107 of the Financial Services Act 2012 (power to make further provision about regulation of consumer credit) is amended as follows.

2

In subsection (2) omit paragraph (g).

3

In subsection (4) for “(2)(g) to (i)” substitute “ (2)(h) and (i) ”.

Consequential repeals and revocations

I37485

In consequence of the amendments made by this Schedule, the following are repealed or revoked—

a

section 16(2)(b) of the Price Commission Act 1977;

b

article 2(13) of the Deregulation (Weights and Measures) Order 1999 (SI 1999/503);

c

paragraph 9(8)(b) and (9)(a) of Schedule 25 to the Enterprise Act 2002;

d

paragraphs 50 and 62 of Schedule 27 to the Civil Partnerships Act 2004;

e

paragraphs (10) and (24) to (27) of Schedule 1 to the Weights and Measures (Packaged Goods) Regulations 2006 (SI 2006/659);

f

regulations 15 to 18 and 24 to 28 of the Enterprise Act 2002 (Amendment) Regulations 2006 (SI 2006/3363);

g

section 51(2) of the Consumer Credit Act 2006;

h

paragraph 41 of Schedule 21 to the Legal Services Act 2007;

i

sections 57 and 58(1), (3) and (4) of the Consumers, Estate Agents and Redress Act 2007;

j

paragraphs 63 to 65 of Schedule 2 to the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277);

k

paragraph 2 of Schedule 6 to the Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010 (SI 2010/2960);

l

regulation 2 of the Timeshare (Amendment) Regulations 2011 (SI 2011/1065);

m

paragraphs 17 to 20 of Schedule 1 to the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 (SR 2011/331);

n

paragraph 82(a) of Schedule 9 to the Crime and Courts Act 2013.

SCHEDULE 7Enterprise Act 2002: enhanced consumer measures and other enforcement

Section 79

I3751

Part 8 of the Enterprise Act 2002 (enforcement of certain consumer legislation) is amended as follows.

I3762

In section 210 (consumers), omit subsection (5).

I3773

1

Section 211 (domestic infringements) is amended as follows.

2

In subsection (1)(c), omit “in the United Kingdom”.

3

After subsection (1) insert—

1A

But an act or omission which satisfies the conditions in subsection (1) is a domestic infringement only if at least one of the following is satisfied—

a

the person supplying (or seeking to supply) goods or services has a place of business in the United Kingdom, or

b

the goods or services are supplied (or sought to be supplied) to or for a person in the United Kingdom (see section 232).

I3784

In section 213(5A) (CPC enforcers), for paragraph (i) substitute—

i

an enforcement authority within the meaning of section 120(15) of the Communications Act 2003 (regulation of premium rate services);

I3795

1

Section 214 (consultation) is amended as follows.

2

In subsection (4)(a), after “14 days” insert “ or, where subsection (4A) applies, 28 days ”.

3

After subsection (4) insert—

4A

This subsection applies where the person against whom the enforcement order would be made is a member of, or is represented by, a representative body, and that body operates a consumer code which has been approved by—

a

an enforcer, other than a designated enforcer which is not a public body,

b

a body which represents an enforcer mentioned in paragraph (a),

c

a group of enforcers mentioned in paragraph (a), or

d

a community interest company whose objects include the approval of consumer codes.

4B

In subsection (4A)—

  • “consumer code” means a code of practice or other document (however described) intended, with a view to safeguarding or promoting the interests of consumers, to regulate by any means the conduct of persons engaged in the supply of goods or services to consumers (or the conduct of their employees or representatives), and

  • “representative body” means an organisation established to represent the interests of two or more businesses in a particular sector or area, and for this purpose “business” has the meaning it bears in section 210.

I3806

In section 217 (enforcement orders), after subsection (10) insert—

10A

An enforcement order may require a person against whom the order is made to take enhanced consumer measures (defined in section 219A) within a period specified by the court.

10B

An undertaking under subsection (9) may include a further undertaking by the person to take enhanced consumer measures within a period specified in the undertaking.

10C

Subsections (10A) and (10B) are subject to section 219C in a case where the application for the enforcement order was made by a designated enforcer which is not a public body.

10D

Where a person is required by an enforcement order or an undertaking under this section to take enhanced consumer measures, the order or undertaking may include requirements as to the provision of information or documents to the court by the person in order that the court may determine if the person is taking those measures.

I3817

In section 219 (undertakings), after subsection (5) insert—

5ZA

An undertaking under this section may include a further undertaking by the person—

a

to take enhanced consumer measures (defined in section 219A) within a period specified in the undertaking, and

b

where such measures are included, to provide information or documents to the enforcer in order that the enforcer may determine if the person is taking those measures.

5ZB

Subsection (5ZA) is subject to section 219C in a case where the enforcer is a designated enforcer which is not a public body.

I3828

After section 219 insert—

219ADefinition of enhanced consumer measures

1

In this Part, enhanced consumer measures are measures (not excluded by subsection (5)) falling within—

a

the redress category described in subsection (2),

b

the compliance category described in subsection (3), or

c

the choice category described in subsection (4).

2

The measures in the redress category are—

a

measures offering compensation or other redress to consumers who have suffered loss as a result of the conduct which has given rise to the enforcement order or undertaking,

b

where the conduct referred to in paragraph (a) relates to a contract, measures offering such consumers the option to terminate (but not vary) that contract,

c

where such consumers cannot be identified, or cannot be identified without disproportionate cost to the subject of the enforcement order or undertaking, measures intended to be in the collective interests of consumers.

3

The measures in the compliance category are measures intended to prevent or reduce the risk of the occurrence or repetition of the conduct to which the enforcement order or undertaking relates (including measures with that purpose which may have the effect of improving compliance with consumer law more generally).

4

The measures in the choice category are measures intended to enable consumers to choose more effectively between persons supplying or seeking to supply goods or services.

5

The following are not enhanced consumer measures—

a

a publication requirement included in an enforcement order as described in section 217(8),

b

a publication requirement included in an undertaking accepted by the court as described in section 217(10), or

c

a publication requirement included in an undertaking accepted by a CPC enforcer as described in section 219(5A)(a).

219BInclusion of enhanced consumer measures etc.

1

An enforcement order or undertaking may include only such enhanced consumer measures as the court or enforcer (as the case may be) considers to be just and reasonable.

2

For the purposes of subsection (1) the court or enforcer must in particular consider whether any proposed enhanced consumer measures are proportionate, taking into account—

a

the likely benefit of the measures to consumers,

b

the costs likely to be incurred by the subject of the enforcement order or undertaking, and

c

the likely cost to consumers of obtaining the benefit of the measures.

3

The costs referred to in subsection (2)(b) are—

a

the cost of the measures, and

b

the reasonable administrative costs associated with taking the measures.

4

An enforcement order or undertaking may include enhanced consumer measures in the redress category—

a

only in a loss case, and

b

only if the court or enforcer (as the case may be) is satisfied that the cost of such measures to the subject of the enforcement order or undertaking is unlikely to be more than the sum of the losses suffered by consumers as a result of the conduct which has given rise to the enforcement order or undertaking.

5

The cost referred to in subsection (4)(b) does not include the administrative costs associated with taking the measures.

6

Subsection (7) applies if an enforcement order or undertaking includes enhanced consumer measures offering compensation and a settlement agreement is entered into in connection with the payment of compensation.

7

A waiver of a person's rights in the settlement agreement is not valid if it is a waiver of the right to bring civil proceedings in respect of conduct other than the conduct which has given rise to the enforcement order or undertaking.

8

The following definitions apply for the purposes of subsection (4)(a).

9

In the case of an enforcement order or undertaking under section 217, “a loss case” means a case in which—

a

subsection (1) of that section applies (a finding that a person has engaged in conduct which constitutes an infringement), and

b

consumers have suffered loss as a result of that conduct.

10

In the case of an undertaking under section 219, “a loss case” means a case in which—

a

subsection (3)(a) or (b) of that section applies (a belief that a person has engaged or is engaging in conduct which constitutes an infringement), and

b

consumers have suffered loss as a result of that conduct.

219CAvailability of enhanced consumer measures to private enforcers

1

An enforcement order made on the application of a designated enforcer which is not a public body may require a person to take enhanced consumer measures only if the following conditions are satisfied.

2

An undertaking given under section 217(9) following an application for an enforcement order made by a designated enforcer which is not a public body, or an undertaking given to such an enforcer under section 219, may include a further undertaking by a person to take enhanced consumer measures only if the following conditions are satisfied.

3

The first condition is that the enforcer is specified for the purposes of this section by order made by the Secretary of State.

4

The second condition is that the enhanced consumer measures do not directly benefit the enforcer or an associated undertaking.

5

Enhanced consumer measures which directly benefit an enforcer or an associated undertaking include, in particular, measures which—

a

require a person to pay money to the enforcer or associated undertaking,

b

require a person to participate in a scheme which is designed to recommend persons supplying or seeking to supply goods or services to consumers and which is administered by the the enforcer or associated undertaking, or

c

would give the enforcer or associated undertaking a commercial advantage over any of its competitors.

6

The Secretary of State may make an order under subsection (3) specifying an enforcer only if the Secretary of State is satisfied that to do so is likely to—

a

improve the availability to consumers of redress for infringements to which the enforcer's designation relates,

b

improve the availability to consumers of information which enables them to choose more effectively between persons supplying or seeking to supply goods or services, or

c

improve compliance with consumer law.

7

The Secretary of State may make an order under subsection (3) specifying an enforcer only if the functions of the enforcer under this Part have been specified under section 24 of the Legislative and Regulatory Reform Act 2006 (functions to which principles under section 21 and code of practice under section 22 apply), to the extent that they are capable of being so specified.

8

The power to make an order under subsection (3)—

a

is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament;

b

includes power to make incidental, supplementary, consequential, transitional, transitory or saving provision.

9

Subsection (10) applies if—

a

an enforcer exercises a function in relation to a person by virtue of subsection (1) or (2),

b

that function is a relevant function for the purposes of Part 2 (co-ordination of regulatory enforcement) of the Regulatory Enforcement and Sanctions Act 2008, and

c

a primary authority (within the meaning of that Part) has given advice or guidance under section 27(1) of that Act—

i

to that person in relation to that function, or

ii

to other local authorities (within the meaning of that Part) with that function as to how they should exercise it in relation to that person.

10

The enforcer must, in exercising the function in relation to that person, act consistently with that advice or guidance.

11

In this section “associated undertaking”, in relation to a designated enforcer, means—

a

a parent undertaking or subsidiary undertaking of the enforcer, or

b

a subsidiary undertaking of a parent undertaking of the enforcer,

and for this purpose “parent undertaking” and “subsidiary undertaking” have the meanings given by section 1162 of the Companies Act 2006.

I3839

1

Section 220 (further proceedings) is amended as follows.

2

After subsection (1) insert—

1A

This section does not apply in the case of a failure to comply with an order or undertaking which consists only of a failure to provide information or documents required by the order or undertaking as described in section 217(10D).

3

In subsection (2), for “In such a case the CMA” substitute “ Any CPC enforcer ”.

4

In subsection (5)—

a

in the opening words, for “sections 215 and 217 or 218 (as the case may be)” substitute “ sections 215, 217 or 218 (as the case may be) and 219A, 219B and 219C ”,

b

for paragraph (c) substitute—

c

section 217(9), (10), (10B) and (11) must be ignored, and section 217(10C) and (10D) must be ignored to the extent that they relate to an undertaking under section 217(9);

c

after paragraph (d) insert—

e

sections 219A, 219B and 219C must be ignored to the extent that they relate to an undertaking under section 217(9) or 219.

I38410

In section 229 (advice and information), after subsection (1) insert—

1A

As soon as is reasonably practicable after the commencement of Schedule 5 to the Consumer Rights Act 2015 (investigatory powers etc.) the CMA must prepare and publish advice and information with a view to—

a

explaining the provisions of that Schedule, so far as they relate to investigatory powers exercised for the purposes set out in paragraphs 13(2) and (3) and 19 of that Schedule, to persons who are likely to be affected by them, and

b

indicating how the CMA expects such provisions to operate.

SCHEDULE 8Private actions in competition law

Section 81

PART 1Competition Act 1998

I3851

The Competition Act 1998 is amended in accordance with this Part.

I3862

For the heading of Chapter 4 of Part 1, substitute “ Appeals, proceedings before the Tribunal and settlements relating to infringements of competition law ”.

I3873

For the cross-heading preceding section 46, substitute “ Appeals and proceedings before the Tribunal ”.

I3884

1

For section 47A substitute—

47AProceedings before the Tribunal: claims for damages etc.

1

A person may make a claim to which this section applies in proceedings before the Tribunal, subject to the provisions of this Act and Tribunal rules.

2

This section applies to a claim of a kind specified in subsection (3) which a person who has suffered loss or damage may make in civil proceedings brought in any part of the United Kingdom in respect of an infringement decision or an alleged infringement of—

a

the Chapter I prohibition,

b

the Chapter II prohibition,

c

the prohibition in Article 101(1), or

d

the prohibition in Article 102.

3

The claims are—

a

a claim for damages;

b

any other claim for a sum of money;

c

in proceedings in England and Wales or Northern Ireland, a claim for an injunction.

4

For the purpose of identifying claims which may be made in civil proceedings, any limitation rules or rules relating to prescription that would apply in such proceedings are to be disregarded.

5

The right to make a claim in proceedings under this section does not affect the right to bring any other proceedings in respect of the claim.

6

In this Part (except in section 49C) “infringement decision” means—

a

a decision of the CMA that the Chapter I prohibition, the Chapter II prohibition, the prohibition in Article 101(1) or the prohibition in Article 102 has been infringed,

b

a decision of the Tribunal on an appeal from a decision of the CMA that the Chapter I prohibition, the Chapter II prohibition, the prohibition in Article 101(1) or the prohibition in Article 102 has been infringed, or

c

a decision of the Commission that the prohibition in Article 101(1) or the prohibition in Article 102 has been infringed.

2

Section 47A of the Competition Act 1998 (as substituted by sub-paragraph (1)) applies to claims arising before the commencement of this paragraph as it applies to claims arising after that time.

I3895

1

For section 47B substitute—

47BCollective proceedings before the Tribunal

1

Subject to the provisions of this Act and Tribunal rules, proceedings may be brought before the Tribunal combining two or more claims to which section 47A applies (“collective proceedings”).

2

Collective proceedings must be commenced by a person who proposes to be the representative in those proceedings.

3

The following points apply in relation to claims in collective proceedings—

a

it is not a requirement that all of the claims should be against all of the defendants to the proceedings,

b

the proceedings may combine claims which have been made in proceedings under section 47A and claims which have not, and

c

a claim which has been made in proceedings under section 47A may be continued in collective proceedings only with the consent of the person who made that claim.

4

Collective proceedings may be continued only if the Tribunal makes a collective proceedings order.

5

The Tribunal may make a collective proceedings order only—

a

if it considers that the person who brought the proceedings is a person who, if the order were made, the Tribunal could authorise to act as the representative in those proceedings in accordance with subsection (8), and

b

in respect of claims which are eligible for inclusion in collective proceedings.

6

Claims are eligible for inclusion in collective proceedings only if the Tribunal considers that they raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings.

7

A collective proceedings order must include the following matters—

a

authorisation of the person who brought the proceedings to act as the representative in those proceedings,

b

description of a class of persons whose claims are eligible for inclusion in the proceedings, and

c

specification of the proceedings as opt-in collective proceedings or opt-out collective proceedings (see subsections (10) and (11)).

8

The Tribunal may authorise a person to act as the representative in collective proceedings—

a

whether or not that person is a person falling within the class of persons described in the collective proceedings order for those proceedings (a “class member”), but

b

only if the Tribunal considers that it is just and reasonable for that person to act as a representative in those proceedings.

9

The Tribunal may vary or revoke a collective proceedings order at any time.

10

“Opt-in collective proceedings” are collective proceedings which are brought on behalf of each class member who opts in by notifying the representative, in a manner and by a time specified, that the claim should be included in the collective proceedings.

11

“Opt-out collective proceedings” are collective proceedings which are brought on behalf of each class member except—

a

any class member who opts out by notifying the representative, in a manner and by a time specified, that the claim should not be included in the collective proceedings, and

b

any class member who—

i

is not domiciled in the United Kingdom at a time specified, and

ii

does not, in a manner and by a time specified, opt in by notifying the representative that the claim should be included in the collective proceedings.

12

Where the Tribunal gives a judgment or makes an order in collective proceedings, the judgment or order is binding on all represented persons, except as otherwise specified.

13

The right to make a claim in collective proceedings does not affect the right to bring any other proceedings in respect of the claim.

14

In this section and in section 47C, “specified” means specified in a direction made by the Tribunal.

2

Section 47B of the Competition Act 1998 (as substituted by sub-paragraph (1)) applies to claims arising before the commencement of this paragraph as it applies to claims arising after that time.

I3906

After section 47B (as substituted by paragraph 5) insert—

47CCollective proceedings: damages and costs

1

The Tribunal may not award exemplary damages in collective proceedings.

2

The Tribunal may make an award of damages in collective proceedings without undertaking an assessment of the amount of damages recoverable in respect of the claim of each represented person.

3

Where the Tribunal makes an award of damages in opt-out collective proceedings, the Tribunal must make an order providing for the damages to be paid on behalf of the represented persons to—

a

the representative, or

b

such person other than a represented person as the Tribunal thinks fit.

4

Where the Tribunal makes an award of damages in opt-in collective proceedings, the Tribunal may make an order as described in subsection (3).

5

Subject to subsection (6), where the Tribunal makes an award of damages in opt-out collective proceedings, any damages not claimed by the represented persons within a specified period must be paid to the charity for the time being prescribed by order made by the Lord Chancellor under section 194(8) of the Legal Services Act 2007.

6

In a case within subsection (5) the Tribunal may order that all or part of any damages not claimed by the represented persons within a specified period is instead to be paid to the representative in respect of all or part of the costs or expenses incurred by the representative in connection with the proceedings.

7

The Secretary of State may by order amend subsection (5) so as to substitute a different charity for the one for the time being specified in that subsection.

8

A damages-based agreement is unenforceable if it relates to opt-out collective proceedings.

9

In this section—

a

“charity” means a body, or the trustees of a trust, established for charitable purposes only;

b

“damages” (except in the term “exemplary damages”) includes any sum of money which may be awarded by the Tribunal in collective proceedings (other than costs or expenses);

c

“damages-based agreement” has the meaning given in section 58AA(3) of the Courts and Legal Services Act 1990.

I3917

After section 47C (inserted by paragraph 6) insert—

47DProceedings under section 47A or collective proceedings: injunctions etc.

1

An injunction granted by the Tribunal in proceedings under section 47A or in collective proceedings—

a

has the same effect as an injunction granted by the High Court, and

b

is enforceable as if it were an injunction granted by the High Court.

2

In deciding whether to grant an injunction in proceedings under section 47A or in collective proceedings, the Tribunal must—

a

in proceedings in England and Wales, apply the principles which the High Court would apply in deciding whether to grant an injunction under section 37(1) of the Senior Courts Act 1981, and

b

in proceedings in Northern Ireland, apply the principles that the High Court would apply in deciding whether to grant an injunction.

3

Subsection (2) is subject to Tribunal rules which make provision of the kind mentioned in paragraph 15A(3) of Schedule 4 to the Enterprise Act 2002 (undertakings as to damages in relation to claims subject to the fast-track procedure).

I3928

1

After section 47D (inserted by paragraph 7) insert—

47ELimitation or prescriptive periods for proceedings under section 47A and collective proceedings

1

Subsection (2) applies in respect of a claim to which section 47A applies, for the purposes of determining the limitation or prescriptive period which would apply in respect of the claim if it were to be made in—

a

proceedings under section 47A, or

b

collective proceedings at the commencement of those proceedings.

2

Where this subsection applies—

a

in the case of proceedings in England and Wales, the Limitation Act 1980 applies as if the claim were an action in a court of law;

b

in the case of proceedings in Scotland, the Prescription and Limitation (Scotland) Act 1973 applies as if the claim related to an obligation to which section 6 of that Act applies;

c

in the case of proceedings in Northern Ireland, the Limitation (Northern Ireland) Order 1989 applies as if the claim were an action in a court established by law.

3

Where a claim is made in collective proceedings at the commencement of those proceedings (“the section 47B claim”), subsections (4) to (6) apply for the purpose of determining the limitation or prescriptive period which would apply in respect of the claim if it were subsequently to be made in proceedings under section 47A.

4

The running of the limitation or prescriptive period in respect of the claim is suspended from the date on which the collective proceedings are commenced.

5

Following suspension under subsection (4), the running of the limitation or prescriptive period in respect of the claim resumes on the date on which any of the following occurs—

a

the Tribunal declines to make a collective proceedings order in respect of the collective proceedings;

b

the Tribunal makes a collective proceedings order in respect of the collective proceedings, but the order does not provide that the section 47B claim is eligible for inclusion in the proceedings;

c

the Tribunal rejects the section 47B claim;

d

in the case of opt-in collective proceedings, the period within which a person may choose to have the section 47B claim included in the proceedings expires without the person having done so;

e

in the case of opt-out collective proceedings—

i

a person domiciled in the United Kingdom chooses (within the period in which such a choice may be made) to have the section 47B claim excluded from the collective proceedings, or

ii

the period within which a person not domiciled in the United Kingdom may choose to have the section 47B claim included in the collective proceedings expires without the person having done so;

f

the section 47B claim is withdrawn;

g

the Tribunal revokes the collective proceedings order in respect of the collective proceedings;

h

the Tribunal varies the collective proceedings order in such a way that the section 47B claim is no longer included in the collective proceedings;

i

the section 47B claim is settled with or without the Tribunal's approval;

j

the section 47B claim is dismissed, discontinued or otherwise disposed of without an adjudication on the merits.

6

Where the running of the limitation or prescriptive period in respect of the claim resumes under subsection (5) but the period would otherwise expire before the end of the period of six months beginning with the date of that resumption, the period is treated as expiring at the end of that six month period.

7

This section has effect subject to any provision in Tribunal rules which defers the date on which the limitation or prescriptive period begins in relation to claims in proceedings under section 47A or in collective proceedings.

2

Section 47E of the Competition Act 1998 does not apply in relation to claims arising before the commencement of this paragraph.

I3939

1

Section 49 (further appeals) is amended in accordance with this paragraph.

2

In subsection (1)—

a

at the end of paragraph (a) insert “ and ”, and

b

omit paragraph (b) and the “and” at the end of that paragraph.

3

After subsection (1) insert—

1A

An appeal lies to the appropriate court on a point of law arising from a decision of the Tribunal in proceedings under section 47A or in collective proceedings—

a

as to the award of damages or other sum (other than a decision on costs or expenses), or

b

as to the grant of an injunction.

1B

An appeal lies to the appropriate court from a decision of the Tribunal in proceedings under section 47A or in collective proceedings as to the amount of an award of damages or other sum (other than the amount of costs or expenses).

1C

An appeal under subsection (1A) arising from a decision in respect of a stand-alone claim may include consideration of a point of law arising from a finding of the Tribunal as to an infringement of a prohibition listed in section 47A(2).

1D

In subsection (1C) “a stand-alone claim” is a claim—

a

in respect of an alleged infringement of a prohibition listed in section 47A(2), and

b

made in proceedings under section 47A or included in collective proceedings.

4

In subsection (2)(a), at the beginning insert “ except as provided by subsection (2A), ”.

5

After subsection (2) insert—

2A

An appeal from a decision of the Tribunal in respect of a claim included in collective proceedings may be brought only by the representative in those proceedings or by a defendant to that claim.

I39410

1

After section 49 insert—

Settlements relating to infringements of competition law

49ACollective settlements: where a collective proceedings order has been made

1

The Tribunal may, in accordance with this section and Tribunal rules, make an order approving the settlement of claims in collective proceedings (a “collective settlement”) where—

a

a collective proceedings order has been made in respect of the claims, and

b

the Tribunal has specified that the proceedings are opt-out collective proceedings.

2

An application for approval of a proposed collective settlement must be made to the Tribunal by the representative and the defendant in the collective proceedings.

3

The representative and the defendant must provide agreed details of the claims to be settled by the proposed collective settlement and the proposed terms of that settlement.

4

Where there is more than one defendant in the collective proceedings, “defendant” in subsections (2) and (3) means such of the defendants as wish to be bound by the proposed collective settlement.

5

The Tribunal may make an order approving a proposed collective settlement only if satisfied that its terms are just and reasonable.

6

On the date on which the Tribunal approves a collective settlement—

a

if the period within which persons may opt out of or (in the case of persons not domiciled in the United Kingdom) opt in to the collective proceedings has expired, subsections (8) and (10) apply so as to determine the persons bound by the settlement;

b

if that period has not yet expired, subsections (9) and (10) apply so as to determine the persons bound by the settlement.

7

If the period within which persons may opt out of the collective proceedings expires on a different date from the period within which persons not domiciled in the United Kingdom may opt in to the collective proceedings, the references in subsection (6) to the expiry of a period are to the expiry of whichever of those periods expires later.

8

Where this subsection applies, a collective settlement approved by the Tribunal is binding on all persons falling within the class of persons described in the collective proceedings order who—

a

were domiciled in the United Kingdom at the time specified for the purposes of determining domicile in relation to the collective proceedings (see section 47B(11)(b)(i)) and did not opt out of those proceedings, or

b

opted in to the collective proceedings.

9

Where this subsection applies, a collective settlement approved by the Tribunal is binding on all persons falling within the class of persons described in the collective proceedings order.

10

But a collective settlement is not binding on a person who—

a

opts out by notifying the representative, in a manner and by a time specified, that the claim should not be included in the collective settlement, or

b

is not domiciled in the United Kingdom at a time specified, and does not, in a manner and by a time specified, opt in by notifying the representative that the claim should be included in the collective settlement.

11

This section does not affect a person's right to offer to settle opt-in collective proceedings.

12

In this section and in section 49B, “specified” means specified in a direction made by the Tribunal.

2

Section 49A of the Competition Act 1998 applies to claims arising before the commencement of this paragraph as it applies to claims arising after that time.

I39511

1

After section 49A (inserted by paragraph 10) insert—

49BCollective settlements: where a collective proceedings order has not been made

1

The Tribunal may, in accordance with this section and Tribunal rules, make an order approving the settlement of claims (a “collective settlement”) where—

a

a collective proceedings order has not been made in respect of the claims, but

b

if collective proceedings were brought, the claims could be made at the commencement of the proceedings (disregarding any limitation or prescriptive period applicable to a claim in collective proceedings).

2

An application for approval of a proposed collective settlement must be made to the Tribunal by—

a

a person who proposes to be the settlement representative in relation to the collective settlement, and

b

the person who, if collective proceedings were brought in respect of the claims, would be a defendant in those proceedings (or, where more than one person would be a defendant in those proceedings, such of those persons as wish to be bound by the proposed collective settlement).

3

The persons applying to the Tribunal under subsection (2) must provide agreed details of the claims to be settled by the proposed collective settlement and the proposed terms of that settlement.

4

The Tribunal may make an order approving a proposed collective settlement (see subsection (8)) only if it first makes a collective settlement order.

5

The Tribunal may make a collective settlement order only—

a

if it considers that the person described in subsection (2)(a) is a person who, if the order were made, the Tribunal could authorise to act as the settlement representative in relation to the collective settlement in accordance with subsection (7), and

b

in respect of claims which, if collective proceedings were brought, would be eligible for inclusion in the proceedings (see section 47B(6)).

6

A collective settlement order must include the following matters—

a

authorisation of the person described in subsection (2)(a) to act as the settlement representative in relation to the collective settlement, and

b

description of a class of persons whose claims fall within subsection (5)(b).

7

The Tribunal may authorise a person to act as the settlement representative in relation to a collective settlement—

a

whether or not that person is a person falling within the class of persons described in the collective settlement order for that settlement, but

b

only if the Tribunal considers that it is just and reasonable for that person to act as the settlement representative in relation to that settlement.

8

Where the Tribunal has made a collective settlement order, it may make an order approving a proposed collective settlement only if satisfied that its terms are just and reasonable.

9

A collective settlement approved by the Tribunal is binding on all persons falling within the class of persons described in the collective settlement order.

10

But a collective settlement is not binding on a person who—

a

opts out by notifying the settlement representative, in a manner and by a time specified, that the claim should not be included in the collective settlement, or

b

is not domiciled in the United Kingdom at a time specified, and does not, in a manner and by a time specified, opt in by notifying the settlement representative that the claim should be included in the collective settlement.

11

In this section, “settlement representative” means a person who is authorised by a collective settlement order to act in relation to a collective settlement.

2

Section 49B of the Competition Act 1998 applies to claims arising before the commencement of this paragraph as it applies to claims arising after that time.

I103I39612

After section 49B (inserted by paragraph 11) insert—

49CApproval of redress schemes by the CMA

1

A person may apply to the CMA for approval of a redress scheme.

2

The CMA may consider an application before the infringement decision to which the redress scheme relates has been made, but may approve the scheme only—

a

after that decision has been made, or

b

in the case of a decision of the CMA, at the same time as that decision is made.

3

In deciding whether to approve a redress scheme, the CMA may take into account the amount or value of compensation offered under the scheme.

4

The CMA may approve a redress scheme under subsection (2)(b) subject to a condition or conditions requiring the provision of further information about the operation of the scheme (including about the amount or value of compensation to be offered under the scheme or how this will be determined).

5

If the CMA approves a redress scheme subject to such a condition, it may—

a

approve the scheme subject to other conditions;

b

withdraw approval from the scheme if any conditions imposed under subsection (4) or paragraph (a) are not met;

c

approve a redress scheme as a replacement for the original scheme (but may not approve that scheme subject to conditions).

6

An approved scheme may not be varied by the CMA or the compensating party.

7

But, where the CMA approves a redress scheme subject to a condition of the kind mentioned in subsection (4), subsection (6) does not prevent further information provided in accordance with the condition from forming part of the terms of the scheme.

8

The Secretary of State may make regulations relating to the approval of redress schemes, and the regulations may in particular—

a

make provision as to the procedure governing an application for approval of a redress scheme, including the information to be provided with the application;

b

provide that the CMA may approve a redress scheme only if it has been devised according to a process specified in the regulations;

c

provide that the CMA may approve a redress scheme only if it is in a form, or contains terms, specified in the regulations (which may include terms requiring a settlement agreement under the scheme to be in a form, or contain terms, specified in the regulations);

d

provide that the CMA may approve a redress scheme only if (so far as the CMA can judge from facts known to it) the scheme is intended to be administered in a manner specified in the regulations;

e

describe factors which the CMA may or must take into account, or may not take into account, in deciding whether to approve a redress scheme.

9

The CMA must publish guidance with regard to—

a

applications for approval of redress schemes,

b

the approval of redress schemes, and

c

the enforcement of approved schemes, and in particular as to the criteria which the CMA intends to adopt in deciding whether to bring proceedings under section 49E(4).

10

Guidance under subsection (9) must be approved by the Secretary of State before it is published.

11

In this section and sections 49D and 49E—

  • “approved scheme” means a redress scheme approved by the CMA,

  • “compensating party” means a person offering compensation under an approved scheme,

  • “infringement decision” means—

    1. a

      a decision of the CMA that the Chapter I prohibition, the Chapter II prohibition, the prohibition in Article 101(1) or the prohibition in Article 102 has been infringed, or

    2. b

      a decision of the Commission that the prohibition in Article 101(1) or the prohibition in Article 102 has been infringed, and

  • “redress scheme” means a scheme under which a person offers compensation in consequence of an infringement decision made in respect of that person.

12

For the purposes of this section and section 49E, “compensation”—

a

may be monetary or non-monetary, and

b

may be offered to persons who have not suffered a loss as a result of the infringement decision to which the redress scheme relates.

49DRedress schemes: recovery of costs

1

The CMA may require a person making an application for approval of a redress scheme to pay some or all of the CMA's reasonable costs relating to the application.

2

A requirement to pay costs is imposed by giving that person written notice specifying—

a

the amount to be paid,

b

how that amount has been calculated, and

c

by when that amount must be paid.

3

A person required to pay costs under this section may appeal to the Tribunal against the amount.

4

Where costs required to be paid under this section relate to an approved scheme, the CMA may withdraw approval from that scheme if the costs have not been paid by the date specified in accordance with subsection (2)(c).

5

Costs required to be paid under this section are recoverable by the CMA as a debt.

49EEnforcement of approved schemes

1

A compensating party is under a duty to comply with the terms of an approved scheme (“the duty”).

2

The duty is owed to any person entitled to compensation under the terms of the approved scheme.

3

Where such a person suffers loss or damage as a result of a breach of the duty, the person may bring civil proceedings before the court for damages, an injunction or interdict or any other appropriate relief or remedy.

4

Where the CMA considers that the compensating party is in breach of the duty, the CMA may bring civil proceedings before the court for an injunction or interdict or any other appropriate relief or remedy.

5

Subsection (4) is without prejudice to any right that a person has to bring proceedings under subsection (3).

6

In any proceedings brought under subsection (3) or (4), it is a defence for the compensating party to show that it took all reasonable steps to comply with the duty.

7

Where the CMA considers that it is no longer appropriate for the compensating party to be subject to the duty, the CMA may give notice in writing to that party stating that it is released from the duty.

8

Where a person has entered into a settlement agreement with the compensating party, that agreement remains enforceable notwithstanding the release of the compensating party under subsection (7) from the duty.

9

In this section “the court” means—

a

in England and Wales, the High Court or the county court,

b

in Northern Ireland, the High Court or a county court,

c

in Scotland, the Court of Session or the sheriff.

I39713

1

Section 58 (findings of fact by CMA) is amended in accordance with this paragraph.

2

In subsection (1), after “the court” insert “ or the Tribunal ”.

3

In subsection (2)—

a

in the definition of “Part I proceedings”, before paragraph (a) insert—

za

in respect of an infringement decision;

b

in the definition of “relevant party”, in paragraphs (a) and (b), for “is alleged to have infringed the prohibition” substitute “ has been found to have infringed the prohibition or is alleged to have infringed the prohibition (as the case may be) ”.

4

In subsection (3)—

a

after “Rules of court” insert “ or Tribunal rules ”, and

b

after “the court” insert “ or the Tribunal ”.

5

After subsection (3) insert—

4

In this section “the court” means—

a

in England and Wales or Northern Ireland, the High Court,

b

in Scotland, the Court of Session or the sheriff.

I39814

1

For section 58A substitute—

58AInfringement decisions

1

This section applies to a claim in respect of an infringement decision which is brought in proceedings—

a

before the court, or

b

before the Tribunal under section 47A or 47B.

2

The court or the Tribunal is bound by the infringement decision once it has become final.

3

An infringement decision specified in section 47A(6)(a) or (b) becomes final—

a

when the time for appealing against that decision expires without an appeal having been brought;

b

where the decision is specified in section 47A(6)(a) and an appeal has been brought against the decision under section 46 or 47, when that appeal—

i

has been withdrawn, dismissed or otherwise discontinued, or

ii

has confirmed the infringement decision and the time for making any further appeal against that confirmatory decision expires without a further appeal having been brought;

c

where an appeal has been brought in relation to the decision under section 49, when that appeal—

i

in the case of an appeal against the infringement decision or against a decision which confirmed the infringement decision, has been withdrawn, dismissed or otherwise discontinued, or

ii

has confirmed the infringement decision and the time for making any further appeal to the Supreme Court against that confirmatory decision expires without a further appeal having been brought; or

d

where an appeal has been brought to the Supreme Court in relation to the decision, when that appeal—

i

in the case of an appeal against a decision which confirmed the infringement decision, has been withdrawn, dismissed or otherwise discontinued, or

ii

has confirmed the infringement decision.

4

An infringement decision specified in section 47A(6)(c) becomes final—

a

when the time for appealing against that decision in the European Court expires without an appeal having been brought; or

b

where such an appeal has been brought against the decision, when that appeal—

i

has been withdrawn, dismissed or otherwise discontinued, or

ii

has confirmed the infringement decision.

5

This section applies to the extent that the court or the Tribunal would not otherwise be bound by the infringement decision in question.

6

In this section “the court” means—

a

in England and Wales or Northern Ireland, the High Court,

b

in Scotland, the Court of Session or the sheriff.

2

Section 58A of the Competition Act 1998 (as substituted by sub-paragraph (1)) does not apply in relation to decisions made before the commencement of this paragraph.

I39915

1

Section 59 (interpretation of Part 1) is amended in accordance with this paragraph.

2

In subsection (1), at the appropriate places insert—

“class member” has the meaning given in section 47B(8)(a);

“collective proceedings” has the meaning given in section 47B(1);

“collective proceedings order” means an order made by the Tribunal authorising the continuance of collective proceedings;

“infringement decision”, except in section 49C, has the meaning given in section 47A(6);

“injunction” includes an interim injunction;

“opt-in collective proceedings” has the meaning given in section 47B(10);

“opt-out collective proceedings” has the meaning given in section 47B(11);

“representative” means a person who is authorised by a collective proceedings order to bring collective proceedings;

“represented person” means a class member who—

a

has opted in to opt-in collective proceedings,

b

was domiciled in the United Kingdom at the time specified for the purposes of determining domicile (see section 47B(11)(b)(i)) and has not opted out of opt-out collective proceedings, or

c

has opted in to opt-out collective proceedings;

3

In subsection (1), in the definition of “the court”, before “58” insert “ 49E, ”.

4

After subsection (1) insert—

1A

In this Part, in respect of proceedings in Scotland, “defendant” is to be read as “defender”.

1B

Sections 41, 42, 45 and 46 of the Civil Jurisdiction and Judgments Act 1982 apply for the purpose of determining whether a person is regarded as “domiciled in the United Kingdom” for the purposes of this Part.

I40016

In section 71 (regulations, orders and rules), after subsection (4)(ca) insert—

cb

section 47C(7),

I40117

1

Schedule 8 (appeals) is amended in accordance with this paragraph.

2

In paragraph 2(1), for “46 or 47” substitute “ 46, 47 or 49D(3) ”.

3

After paragraph 3A insert—

3B

1

This paragraph applies to an appeal under section 49D(3).

2

The Tribunal must determine the appeal on the merits by reference to the grounds of appeal set out in the notice of appeal.

3

The Tribunal may—

a

approve the amount of costs which is the subject of the appeal, or

b

impose a requirement to pay costs of a different amount.

4

The Tribunal may also give such directions, or take such other steps, as the CMA could itself have given or taken.

5

A requirement imposed by the Tribunal under sub-paragraph (3)(b) has the same effect, and may be enforced in the same manner, as a requirement imposed by the CMA under section 49D.

PART 2Enterprise Act 2002

I104I40218

The Enterprise Act 2002 is amended in accordance with this Part.

I40319

1

Section 14 (constitution of Tribunal for particular proceedings and its decisions) is amended as follows.

2

In subsection (1), after “before it” insert “ , including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act, ”.

3

After subsection (1) insert—

1A

But in the case of proceedings relating to a claim under section 47A of the 1998 Act which is subject to the fast-track procedure (as described in Tribunal rules), the Tribunal may consist of a chairman only.

I105I40420

In section 15 (Tribunal rules), in subsection (1), at the end insert “ , including proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act. ”

I106I40521

In section 16 (transfers of certain proceedings to and from Tribunal), in subsection (5), for “High Court or the Court of Session of” substitute “ court of all or any part of ”.

I107I40622

Schedule 4 (Tribunal: procedure) is amended in accordance with the following paragraphs of this Part.

I40723

In paragraph 1 (decisions of the Tribunal), for sub-paragraph (1)(a) substitute—

a

state the reasons for the decision;

aa

state whether the decision was unanimous or taken by a majority or, where proceedings are heard by a chairman only, state that fact;

I40824

After paragraph 1 insert—

Enforcement of injunctions in England and Wales and Northern Ireland

1A

1

Where a person (“A”) fails to comply with an injunction granted by the Tribunal in proceedings under section 47A or 47B of the 1998 Act, the Tribunal may certify the matter to the High Court.

2

The High Court may enquire into the matter.

3

If, after hearing any witnesses who may be produced against or on behalf of A, and any statement made by or on behalf of A, the High Court is satisfied that A would have been in contempt of court if the injunction had been granted by the High Court, the High Court may deal with A as if A were in contempt.

I40925

In each of paragraphs 4(c) and 5(1)(c)—

a

for “47B(6)” substitute “ 47C(3) or (4) ”; and

b

for “specified body concerned” substitute “ representative in the proceedings under section 47B of that Act ”.

I41026

In paragraph 6—

a

for sub-paragraph (a) substitute—

a

awards damages to a person in respect of a claim made or continued on behalf of that person (but is not the subject of an order under section 47C(3) or (4) of that Act); or

b

in sub-paragraph (b)—

i

for “an individual” substitute “ a person ”,

ii

for “his behalf” substitute “ behalf of that person ”; and

c

in the full-out words at the end, for “individual” substitute “ person ”.

I41127

In paragraph 7—

a

for “specified body” substitute “ representative ”; and

b

for “individual” substitute “ person ”.

I108I41228

In paragraph 9—

a

the existing provision is numbered as sub-paragraph (1), and

b

after that provision insert—

2

In this Schedule, where a paragraph is capable of applying to proceedings relating to the approval of a collective settlement under section 49A or 49B of the 1998 Act, any reference in that paragraph to “proceedings” includes a reference to those proceedings.

I109I41329

In paragraph 11(2), for paragraph (a) substitute—

a

make further provision as to procedural aspects of the operation of the limitation or prescriptive periods in relation to claims which may be made in proceedings under section 47A of the 1998 Act, as set out in section 47E(3) to (6) of that Act;

I110I41430

For paragraph 13 substitute—

13

1

Tribunal rules may provide for the Tribunal—

a

to reject a claim made under section 47A of the 1998 Act or a section 47B claim if it considers that there are no reasonable grounds for making it;

b

to reject a section 47B claim if—

i

the Tribunal declines to make a collective proceedings order in respect of the proceedings under section 47B of the 1998 Act,

ii

the Tribunal makes a collective proceedings order in respect of the proceedings, but the order does not provide that the claim in question is eligible for inclusion in the proceedings,

iii

the Tribunal revokes the collective proceedings order in respect of the proceedings, or

iv

the Tribunal varies the collective proceedings order in such a way that the claim in question is no longer included in the proceedings;

c

to reject a section 47B claim if the claim had been previously made in proceedings under section 47A of the 1998 Act by a person who has not consented to its being continued in proceedings under section 47B of that Act.

2

In this paragraph, “a section 47B claim” means a claim made in proceedings under section 47B of the 1998 Act at the commencement of those proceedings.

I111I41531

After paragraph 15 insert—

Fast-track procedure

15A

1

Tribunal rules may make provision in relation to a fast-track procedure for claims made in proceedings under section 47A of the 1998 Act, including describing the factors relevant to determining whether a claim is suitable to be dealt with according to that procedure.

2

Tribunal rules may make different provision for claims in proceedings under section 47A of the 1998 Act which are and which are not subject to the fast-track procedure.

3

Tribunal rules may, in particular, provide for the Tribunal to—

a

grant an interim injunction on a claim in proceedings under section 47A of the 1998 Act which is subject to the fast-track procedure to a person who has not given an undertaking as to damages, or

b

impose a cap on the amount that a person may be required to pay under an undertaking as to damages given on the granting of such an interim injunction.

4

In sub-paragraph (3) “an undertaking as to damages” means an undertaking to pay damages which a person sustains as a result of the interim injunction and which the Tribunal considers the person to whom the injunction is granted should pay.

Collective proceedings

15B

1

Tribunal rules may make provision in relation to collective proceedings under section 47B of the 1998 Act.

2

Rules under sub-paragraph (1) must in particular make provision as to the following matters—

a

the procedure governing an application for a collective proceedings order;

b

the factors which the Tribunal must take into account in deciding whether a claim is suitable to be brought in collective proceedings (but rules need not make provision in connection with the determination as to whether claims raise the same, similar or related issues of fact or law);

c

the factors which the Tribunal must take into account in deciding whether to authorise a person to act as a representative in collective proceedings;

d

the procedure by which the Tribunal is to reach a decision as to whether to make a collective proceedings order;

e

the procedure by which a person may opt in or opt out of collective proceedings;

f

the factors which the Tribunal must take into account in deciding whether to vary or revoke a collective proceedings order;

g

the assessment of damages in collective proceedings;

h

the payment of damages in collective proceedings, including the procedure for publicising an award of damages;

i

the effect of judgments and orders in collective proceedings.

Collective settlements

15C

1

Tribunal rules may make provision in relation to collective settlements under sections 49A and 49B of the 1998 Act.

2

Rules under sub-paragraph (1) must in particular make provision as to the following matters—

a

the procedure governing an application for approval of a proposed collective settlement;

b

where section 49B applies, the factors which the Tribunal must take into account in deciding whether to make a collective settlement order (but rules need not make provision in connection with the determination as to whether claims raise the same, similar or related issues of fact or law);

c

where section 49B applies, the factors which the Tribunal must take into account in deciding whether to authorise a person to act as a settlement representative in relation to a collective settlement;

d

where section 49B applies, the procedure by which the Tribunal is to reach a decision as to whether to make a collective settlement order;

e

the factors which the Tribunal must take into account in deciding whether to approve a proposed collective settlement;

f

the procedure by which the Tribunal is to reach a decision as to whether to approve a collective settlement;

g

the procedure by which a person may opt in or opt out of a collective settlement;

h

the payment of compensation under a collective settlement, including the procedure for publicising a compensation award.

I112I41632

In paragraph 17 (conduct of the hearing)—

a

after sub-paragraph (1)(h) insert—

ha

allowing the Tribunal to order payments in respect of the representation of a party to proceedings under section 47A or 47B of the 1998 Act, where the representation by a legal representative was provided free of charge;

b

in sub-paragraph (2)—

i

for “an individual” substitute “ a person ”; and

ii

for “that individual” substitute “ that person ”;

c

after sub-paragraph (2) insert—

2A

Rules under sub-paragraph (1)(h) may provide for costs or expenses to be awarded to or against a person on whose behalf a claim is made or continued in proceedings under section 47B of the 1998 Act in respect of an application in the proceedings made by that person (where that application is not made by the representative in the proceedings on that person's behalf).

d

in sub-paragraph (3), for “an individual” substitute “ a person ”.

I113I41733

After paragraph 20 insert—

Stay or sist of proceedings

20A

1

In relation to proceedings in England and Wales or Northern Ireland under section 47A or 47B of the 1998 Act, Tribunal rules may make provision as to the stay of the proceedings, including as to—

a

the circumstances in which a stay may be ordered or removed at the request of a party to the proceedings,

b

the circumstances in which the proceedings may be stayed at the instance of the Tribunal, and

c

the procedure to be followed.

2

In relation to proceedings in Scotland under section 47A or 47B of the 1998 Act, Tribunal rules may make provision as to the sist of the proceedings, including as to—

a

the circumstances in which a sist may be granted or recalled at the request of a party to the proceedings,

b

the circumstances in which the proceedings may be sisted at the instance of the Tribunal, and

c

the procedure to be followed.

3

Rules under sub-paragraph (1) or (2) may in particular make provision in relation to the stay or sist of proceedings under section 47A or 47B which relate to a claim in respect of an infringement decision (as defined in section 47A(6)) which has not become final (see section 58A of the 1998 Act).

I114I41834

After paragraph 21 insert—

Injunctions

21A

Tribunal rules may make provision in relation to the grant of injunctions (including interim injunctions) in proceedings under section 47A or 47B of the 1998 Act.

I115I41935

In paragraph 23(3), for “an individual” substitute “ a person ”.

I42036

In paragraph 25, after “transfer of” insert “ all or any part of ”.

PART 3Courts and Legal Services Act 1990

I42137

In the Courts and Legal Services Act 1990, in section 58AA (damages-based agreements), after subsection (10) insert—

11

Subsection (1) is subject to section 47C(8) of the Competition Act 1998.

SCHEDULE 9Duty of letting agents to publicise fees: financial penalties

Section 87

Notice of intent

I1I97I4221

1

Before imposing a financial penalty on a letting agent for a breach of a duty imposed by or under section 83, a local weights and measures authority must serve a notice on the agent of its proposal to do so (a “notice of intent”).

2

The notice of intent must be served before the end of the period of 6 months beginning with the first day on which the authority has sufficient evidence of the agent's breach, subject to sub-paragraph (3).

3

If the agent is in breach of the duty on that day, and the breach continues beyond the end of that day, the notice of intent may be served—

a

at any time when the breach is continuing, or

b

within the period of 6 months beginning with the last day on which the breach occurs.

4

The notice of intent must set out—

a

the amount of the proposed financial penalty,

b

the reasons for proposing to impose the penalty, and

c

information about the right to make representations under paragraph 2.

Right to make representations

I2I98I4232

The letting agent may, within the period of 28 days beginning with the day after that on which the notice of intent was sent, make written representations to the local weights and measures authority about the proposal to impose a financial penalty on the agent.

Final notice

I3I99I4243

1

After the end of the period mentioned in paragraph 2 the local weights and measures authority must—

a

decide whether to impose a financial penalty on the letting agent, and

b

if it decides to do so, decide the amount of the penalty.

2

If the authority decides to impose a financial penalty on the agent, it must serve a notice on the agent (a “final notice”) imposing that penalty.

3

The final notice must require the penalty to be paid within the period of 28 days beginning with the day after that on which the notice was sent.

4

The final notice must set out—

a

the amount of the financial penalty,

b

the reasons for imposing the penalty,

c

information about how to pay the penalty,

d

the period for payment of the penalty,

e

information about rights of appeal, and

f

the consequences of failure to comply with the notice.

Withdrawal or amendment of notice

I4I100I4254

1

A local weights and measures authority may at any time—

a

withdraw a notice of intent or final notice, or

b

reduce the amount specified in a notice of intent or final notice.

2

The power in sub-paragraph (1) is to be exercised by giving notice in writing to the letting agent on whom the notice was served.

Appeals

I5I101I4265

1

A letting agent on whom a final notice is served may appeal against that notice to—

a

the First-tier Tribunal, in the case of a notice served by a local weights and measures authority in England, or

b

the residential property tribunal, in the case of a notice served by a local weights and measures authority in Wales.

2

The grounds for an appeal under this paragraph are that—

a

the decision to impose a financial penalty was based on an error of fact,

b

the decision was wrong in law,

c

the amount of the financial penalty is unreasonable, or

d

the decision was unreasonable for any other reason.

3

An appeal under this paragraph to the residential property tribunal must be brought within the period of 28 days beginning with the day after that on which the final notice was sent.

4

If a letting agent appeals under this paragraph, the final notice is suspended until the appeal is finally determined or withdrawn.

5

On an appeal under this paragraph the First-tier Tribunal or (as the case may be) the residential property tribunal may quash, confirm or vary the final notice.

6

The final notice may not be varied under sub-paragraph (5) so as to make it impose a financial penalty of more than £5,000.

Recovery of financial penalty

I6I102I4276

1

This paragraph applies if a letting agent does not pay the whole or any part of a financial penalty which, in accordance with this Schedule, the agent is liable to pay.

2

The local weights and measures authority which imposed the financial penalty may recover the penalty or part on the order of the county court as if it were payable under an order of that court.

3

In proceedings before the county court for the recovery of a financial penalty or part of a financial penalty, a certificate which is—

a

signed by the chief finance officer of the local weights and measures authority which imposed the penalty, and

b

states that the amount due has not been received by a date specified in the certificate,

is conclusive evidence of that fact.

4

A certificate to that effect and purporting to be so signed is to be treated as being so signed unless the contrary is proved.

5

A local weights and measures authority may use the proceeds of a financial penalty for the purposes of any of its functions (whether or not the function is expressed to be a function of a local weights and measures authority).

6

In this paragraph “chief finance officer” has the same meaning as in section 5 of the Local Government and Housing Act 1989.

SCHEDULE 10Secondary ticketing: financial penalties

Section 93

Notice of intent

1

1

Before imposing a financial penalty on a person for a breach of a duty or prohibition imposed by Chapter 5 of Part 3, an enforcement authority must serve a notice on the person of its proposal to do so (a “notice of intent”).

2

The notice of intent must be served before the end of the period of 6 months beginning with the first day on which the authority has sufficient evidence of the person's breach, subject to sub-paragraph (3).

3

If the person is in breach of the duty or prohibition on that day, and the breach continues beyond the end of that day, the notice of intent may be served—

a

at any time when the breach is continuing, or

b

within the period of 6 months beginning with the last day on which the breach occurs.

4

The notice of intent must set out—

a

the amount of the proposed financial penalty,

b

the reasons for proposing to impose the penalty, and

c

information about the right to make representations under paragraph 2.

Right to make representations

2

A person on whom a notice of intent is served may, within the period of 28 days beginning with the day after that on which the notice was sent, make written representations to the enforcement authority about the proposal to impose a financial penalty on the person.

Final notice

3

1

After the end of the period mentioned in paragraph 2 the enforcement authority must—

a

decide whether to impose a financial penalty on the person, and

b

if it decides to do so, decide the amount of the penalty.

2

If the authority decides to impose a financial penalty on the person, it must serve a notice on the person (a “final notice”) imposing that penalty.

3

The final notice must require the penalty to be paid within the period of 28 days beginning with the day after that on which the notice was sent.

4

The final notice must set out—

a

the amount of the financial penalty,

b

the reasons for imposing the penalty,

c

information about how to pay the penalty,

d

the period for payment of the penalty,

e

information about rights of appeal, and

f

the consequences of failure to comply with the notice.

Withdrawal or amendment of notice

4

1

The enforcement authority may at any time—

a

withdraw a notice of intent or final notice, or

b

reduce the amount specified in a notice of intent or final notice.

2

The power in sub-paragraph (1) is to be exercised by giving notice in writing to the person on whom the notice was served.

Appeals

5

1

A person on whom a final notice is served may appeal against that notice—

a

in England and Wales and Scotland, to the First-tier Tribunal;

b

in Northern Ireland, to a county court.

2

The grounds for an appeal under this paragraph are that—

a

the decision to impose a financial penalty was based on an error of fact,

b

the decision was wrong in law,

c

the amount of the financial penalty is unreasonable, or

d

the decision was unreasonable for any other reason.

3

If a person appeals under this paragraph, the final notice is suspended until the appeal is finally determined or withdrawn.

4

On an appeal under this paragraph the First-tier Tribunal or the court may quash, confirm or vary the final notice.

5

The final notice may not be varied under sub-paragraph (4) so as to make it impose a financial penalty of more than £5,000.

Recovery of financial penalty

6

1

This paragraph applies if a person does not pay the whole or any part of a financial penalty which, in accordance with this Schedule, the person is liable to pay.

2

In England and Wales the local weights and measures authority which imposed the financial penalty may recover the penalty or part on the order of the county court as if it were payable under an order of that court.

3

In Scotland the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

4

In Northern Ireland the Department of Enterprise, Trade and Investment may recover the penalty or part on the order of a county court as if it were payable under an order of that court.

5

In proceedings before the court for the recovery of a financial penalty or part of a financial penalty, a certificate which is—

a

signed by the chief finance officer of the local weights and measures authority which imposed the penalty or (as the case may be) issued by the Department of Enterprise, Trade and Investment, and

b

states that the amount due has not been received by a date specified in the certificate,

is conclusive evidence of that fact.

6

A certificate to that effect and purporting to be so signed or issued is to be treated as being so signed or issued unless the contrary is proved.

7

A local weights and measures authority may use the proceeds of a financial penalty for the purposes of any of its functions (whether or not the function is expressed to be a function of a local weights and measures authority).

8

In this paragraph “chief finance officer” has the same meaning as in section 5 of the Local Government and Housing Act 1989.