Information-gathering
Section 9 – Requirement to provide information to Consumer Scotland
25.Subsection (1) enables Consumer Scotland to serve a notice on a person listed in subsection (2) requiring the person to provide it with certain information. It may only do so in relation to information which it requires for the purpose of exercising its functions. The persons listed in subsection (2) and therefore potentially subject to this requirement are a “designated regulator”, a regulated provider, any person who supplies goods or services in the course of business and any other person or description of person specified, through regulations, by Ministers.
26.The Scottish Ministers will specify who is a “designated regulator” and a “regulated provider” for the purposes of this section, and sections 10 to 12, through regulations. Where anyone else is made subject to this power using the regulation-making power under subsection (2)(d), provision can be made in accordance with subsection (5) about the sanctions that are to apply for breach.
27.Consumer Scotland can specify the manner and form in which information is to be provided. When making a request for information Consumer Scotland must consider the importance of minimising the costs, or any other detriment the request might cause, for the person on whom the notice is served.
28.Before specifying a “designated regulator” or “regulated provider”, the Scottish Ministers must consult with such persons as they consider appropriate. Where the Scottish Ministers propose to designate a regulator (including where they propose to extend the regulator’s remit to cover another regulated provider), the appropriate persons consulted must include the proposed regulator.
Section 10 – Failure by a designated regulator to comply with a section 9 notice
29.Section 10 provides that, should a designated regulator fail to give information to Consumer Scotland, that designated regulator can be required to produce a written statement explaining the reasons for the failure. Consumer Scotland has the power to publish this explanation.
30.This section can also be applied to others who are made subject to the information-gathering requirement using the power under section 9(2)(d) (see section 9(5)(a)).
Section 11 – Enforcement by a designated regulator of section 9 notice
31.Section 11 applies where a regulated provider (to be specified by the Scottish Ministers in regulations under section 9(6)(b) but potentially covering providers in regulated sectors such as electricity, gas, postal services or water) fails to comply with an information notice served by Consumer Scotland under section 9(1).
32.In such cases, Consumer Scotland may refer the matter to the “relevant designated regulator”, being the designated regulator for the particular regulated provider as specified in regulations under section 9(6)(b), insofar as the failure to comply with the information notice relates to something within the relevant designated regulator’s remit.
33.The relevant designated regulator must consider any representations made by Consumer Scotland or by the regulated provider and must determine whether the provider was entitled to refuse to provide the information requested by Consumer Scotland. If the relevant designated regulator determines that the provider was not entitled to refuse, then it must direct the provider to provide the information.
Section 12 – Enforcement by the court of a section 9 notice
34.This section applies where a person (other than a person to whom section 10 applies or a regulated provider covered by section 11) refuses or fails to comply with a notice under section 9(1) requiring information to be provided to Consumer Scotland. In this circumstance, Consumer Scotland may apply to the Court of Session for an order requiring the person served with the notice to comply with it. Whether such an order is granted will be at the court’s discretion. Any questions of expenses arising from such an application will be for the court to determine but it is usual practice that, where an application for such an order is unsuccessfully resisted, judicial expenses are awarded against the party that resisted the application. As such, should a person resist the granting of an order under this section, they could find themselves liable for the expenses of the proceedings.
Section 13 – Exemptions from requirement to provide information
35.Section 13 provides exemptions from the requirement to provide information. Subsection (1) means that no person may be required under section 9(1) or section 12 to provide information which they could not be compelled to provide in legal proceedings before the Court of Session.
36.This section also gives the Scottish Ministers the power to prescribe additional exemptions from the requirement to provide information to Consumer Scotland. They would do so by regulations and can detail the persons, type of information or circumstances to which an exemption could apply.
