UK Parliament / Open data

Consumer Rights Bill

My Lords, at Second Reading and at the start of this Committee I said that this was not a bad Bill, it is just a weak one. I also said that there was one exception, and this is it. I hope that when the noble Baroness replies, she will allow herself—using what is probably not a very Hansardian term—some “wriggle room”. The debate we have already had will be loud and clear at Report. The Minister will know better than me how well this could come across in the House. It would perhaps be much easier to withdraw gracefully rather than to try to fight to the bitter end. As I have offered to Ministers before, we will give them all the credit and say what wisdom they brought to it, although we will allow the noble Lord, Lord Best, some credit.

It is a nonsense—I do not know who used that word before—to require trading standards officers, who work to protect consumers, to warn traders of an inspection visit. My noble friend Lady Crawley asked what evidence there is of misuse and my noble friend Lord Harris asked what the problem is that this has been set up to solve. I will add three more questions. First, what is the benefit of this measure to consumers? Secondly, who asked for it? Thirdly, what consultation took place? Before anyone jumps to the 2013 consultation, which I have read very carefully, I would remind the Ministers that businesses were mixed in their responses and were not unanimous. Only some of them supported this notice. Some of them said it would lead to better co-operation between enforcers and businesses, but I thought that enforcers were meant to act on behalf of consumers rather than work too closely with businesses.

The consumer reps who responded to the consultation were worried that giving notice would hamper enforcers’ ability to tackle rogue traders. There were three categories. The third category, comprised of local authorities and regulators, was similarly concerned about the requirement to give notice before exercising a power of entry as it could encourage the obstruction of officers or hinder an intelligence-led approach. Local authorities and regulators also commented that on-the-spot checks would be necessary where there was intelligence about non-compliance, but of course, some of that intelligence could never be used in a court of law. If challenged in the way we have heard either over costs or whether it was reasonable, there would be times when a trading standards officer would not be able to cite the intelligence that led him to that particular retailer. It is true that the respondents supported the restriction on powers, but that was in relation to private dwellings, and that is not what this whole issue is about.

While the Minister tries to find some more persuasive answers to the questions posed today, I will make a couple of extra points. Even with the let-outs mentioned by my noble friend Lord Harris, it still makes no sense to give notice to those who are potentially breaking the law about when enforcers are going to check on them. As we have heard, food safety officers do not

have to do this, although very often they are the same people. It is hard to know why they should have to do so here. As we have just heard, it is difficult for the very same person to need to have different criteria in their head and different lots of powers depending on which breach they are trying to check up on.

The Government have said—certainly to us, but I am not sure if in public—that a trading standards officer can always enter the premises as a member of the public. That way, they can see what any ordinary shopper could, assuming it was a retail rather than wholesale area. However, I have to tell noble Lords that retailers do not keep the counterfeit drink on top; they keep it underneath for those who come in with a nod and a wink. They do not put counterfeit cigarettes out on top either. They are put where a member of the public could not see them but where, on our behalf, we want trading standards officers to be able to see them.

The Government have also argued that this amendment would help small businesses so that they are not troubled by too many visits from the TSO. However, trading standards officers these days work very much on a risk-based programme. Having looked at some of the detail behind that, small businesses are actually very low risk. One TSO said, “We never go to small businesses”. Please do not tell small businesses this, but actually TSOs go to the big ones much more because they work on a basis of risk. The idea that one should constrain the powers across the piece because apparently some small businesses do not like it is worrying.

Another issue, of course, is that wanting 48 hours’ notice in writing still does not allow the trading standards officer to politely phone or text to say, “Can I come on Tuesday?”, which may well be what is best for the small trader that the Government seem to be worried about. It would anyway be perfectly possible for a trading officer to give notice; it is only the absolute requirement that we are worried about. Good practice would be, for many routine visits, that notice would be given for exactly the reason that has been given: so that the right person is there. None of this would prevent that.

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We should also note that many small firms do not like competitive retailers undercutting them by being able to sell counterfeit cigarettes, booze or anything else. In fact, we have been urged by the tobacco retailers’ organisation to push this amendment because it knows jolly well that the trading standards authorities need their existing powers to be able to crack down on the sellers of fake cigarettes and those who are selling to underage children. The national spokesperson for the Tobacco Retailers’ Alliance, which represents legitimate retailers who sell tobacco, has said particularly in view of its concern over tobacco smuggling that: “We were disappointed … to learn that a … provision in this Bill will give a retailer suspected of selling smuggled tobacco 48 hours’ advance warning of having their premises inspected. Frankly, this seems madness. It is like giving drivers 48 hours’ notice of when the police may be out on a particular road to catch those breaking

the speed limit”. The letter goes on in similar terms and urges very strongly that this provision should be removed.

I know that the noble Lord, Lord Blencathra, who is not in his place, responded to a similar letter from this group, agreeing completely with its views. He pointed out that: “We did a report on tobacco plain packaging last year and there was very telling evidence of massive tobacco smuggling amounting to billions. While there are many inspections of businesses which I believe are excessive, there is no justification for giving 48 hours’ notice of an inspection of a tobacconist’s shop. It is not as if it is an intrusion into your personal home”.

What is serious for consumers is that there are likely to be fewer inspections by trading standards authorities because local officers are bound to become risk-averse where they have to articulate, document and be able to prove in court what their evidence was for suspicion of malpractice. It is something that they may not be able to do and it will make them risk-averse. They know that a challenge in court could cost their local authority enormous amounts of money, which we will come on to later.

We are talking here about checks against the sale of dangerous goods such as flammable mattresses; sales to underage children; sales of alcohol to people already inebriated; sales of fake jewellery or household goods; estate agent misbehaviour and misleading advertisements. There is no one but trading standards to protect us, the consumers, so why do the Government want them to do their work with one hand tied behind their back?

Type
Proceeding contribution
Reference
756 cc486-8GC 
Session
2014-15
Chamber / Committee
House of Lords Grand Committee
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