The Public Bodies (The Office of Fair Trading Transfer of Consumer Advice Scheme Function and Modification of Enforcement Functions) Order 2013
The Treasury have consented to the making of this Order in so far as their consent is required by section 6(4) of the Act.
In accordance with section 8 of the Act, the Secretary of State considers that this Order—
serves the purpose of improving the exercise of public functions, having had regard to the factors set out in section 8(1); and
does not remove any necessary protection or prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.
The Scottish Parliament has consented to the making of this Order in so far as its consent is required by section 9(1) of the Act in relation to article 8 of this Order.
The consent of the Northern Ireland Assembly has been obtained in accordance with section 9(3) of the Act.
The Secretary of State has consulted in accordance with section 10 of the Act.
The National Association of Citizens Advice Bureaux and the Scottish Association of Citizens Advice Bureaux have consented to the transfer of functions made by this Order in so far as their consent is required by section 21(1) of the Act.
A draft of this Order, and an explanatory document containing the information required in section 11(2) of the Act, have been laid before Parliament in accordance with section 11(1) of the Act after the end of the period of twelve weeks mentioned in section 11(3).
In accordance with section 11(7) of the Act, the draft of this Order has been approved by a resolution of each House of Parliament after the expiry of the 60-day period referred to in that provision.
Citation, commencement and interpretation
1.
(1)
This Order may be cited as the Public Bodies (The Office of Fair Trading Transfer of Consumer Advice Scheme Function and Modification of Enforcement Functions) Order 2013.
(2)
The Order comes into force on the day after the day on which it is made.
(3)
Transfer of consumer advice scheme function
2.
(1)
Subject to paragraph (3), the OFT’s power under Part 1 of the 2002 Act to support a public consumer advice scheme is, so far as regards support of a scheme that takes the form of providing, or securing the provision of, an arrangement for giving advice without charge to individual consumers on matters personal to them, transferred to Citizens Advice and Citizens Advice Scotland.
(2)
The function transferred may be exercised by Citizens Advice or Citizens Advice Scotland or by them jointly.
(3)
The OFT’s power to support a public consumer advice scheme in that manner is abolished in relation to Northern Ireland, except so far as that function relates to the giving of advice relating to postal services.
(4)
In this article—
“the OFT” means the Office of Fair Trading.
3.
“Exclusion of public consumer advice scheme8A
The OFT may not under this Part support a public consumer advice scheme, where that support of a scheme consists of providing, or securing the provision of, an arrangement for giving advice without charge to individual consumers on matters personal to them.”.
4.
(1)
The function transferred by article 2(1) is not to be regarded as a function under Part 1 of the 2002 Act for the purposes of section 238(1) of the 2002 Act.
(2)
The function transferred by article 2(1) is to be regarded as conferred by this Order for the purposes of section 241(3)(c) of the 2002 Act.
5.
(1)
(2)
Omit subsection (3A)(e).
(3)
In subsection (3A)(f)—
(a)
for “the Office of Fair Trading” substitute “Citizens Advice or Citizens Advice Scotland”;
(b)
for “any OFT scheme” substitute “any qualifying public consumer advice scheme”.
(4)
In subsection (3B)(b) for “the OFT scheme” substitute “the qualifying consumer advice scheme”.
(5)
“(3C)
A qualifying public consumer advice scheme is a scheme that is supported by Citizens Advice or Citizens Advice Scotland, or by them jointly, in a manner that the Office of Fair Trading is prohibited from using by section 8A of the Enterprise Act 2002.”.
(6)
In subsection (10)—
(a)
““Citizens Advice” means the National Association of Citizens Advice Bureaux;”;
““Citizens Advice Scotland” means the Scottish Association of Citizens Advice Bureaux;”;
(b)
omit the definition of “OFT scheme”.
6.
(1)
(2)
In subsection (2)(c) for “or the Office of Fair Trading” substitute “, Citizens Advice or Citizens Advice Scotland”.
(3)
In subsection (4)—
(a)
for “or the Office of Fair Trading” substitute “, Citizens Advice or Citizens Advice Scotland”;
(b)
in paragraph (b), for the words from “the Office” to “advice scheme” substitute “Citizens Advice or Citizens Advice Scotland incurred in connection with its support of a qualifying public consumer advice scheme”.
(4)
“(4A)
A qualifying public consumer advice scheme is a scheme that is supported by Citizens Advice or Citizens Advice Scotland, or by them jointly, in a manner that the Office of Fair Trading is prohibited from using by section 8A of the Enterprise Act 2002.”.
(5)
“—
“Citizens Advice” means the National Association of Citizens Advice Bureaux;
“Citizens Advice Scotland” means the Scottish Association of Citizens Advice Bureaux; ”.
Freedom of Information Act 2000
7.
“The National Association of Citizens Advice Bureaux, in respect of information relating to the function exercisable by virtue of article 2 of the Public Bodies (The Office of Fair Trading Transfer of Consumer Advice Scheme Function and Modification of Enforcement Functions) Order 2013 S.I. 2013/783.”.
Freedom of Information (Scotland) Act 2002
8.
“79A.
The Scottish Association of Citizens Advice Bureaux, but only in respect of information relating to the function exercisable by virtue of article 2 of the Public Bodies (The Office of Fair Trading Transfer of Consumer Advice Scheme Function and Modification of Enforcement Functions) Order 2013 S.I. 2013/783.”.
Modification of enforcement functions
9.
(1)
Section 214 of the 2002 Act (Consultation) is amended as follows.
(2)
“(1)
An enforcer must not make an application for an enforcement order unless—
(a)
the enforcer has engaged in appropriate consultation with the person against whom the enforcement order would be made, and
(b)
if the enforcer is not the OFT, the enforcer has given notice to the OFT of the enforcer’s intention to apply for the enforcement order, and the appropriate minimum period has elapsed.
(1A)
The appropriate minimum period is—
(a)
in the case of an enforcement order, 14 days beginning with the day on which notice under subsection (1)(b) is given;
(b)
in the case of an interim enforcement order, seven days beginning with the day on which notice under subsection (1)(b) is given.”.
(3)
In subsection (4), for “Subsection (1)” substitute “Subsection (1)(a)”.
(4)
In subsection (7), for “(except subsection (4))” substitute “(except subsections (1A) and (4))”.
10.
(1)
(2)
In regulation 3 (Interpretation)—
(a)
““complaint” means a complaint that any contract term drawn up for general use is unfair;”;
(b)
““DETINI” means the Department of Enterprise, Trade and Investment in Northern Ireland;”;
(c)
““a local weights and measures authority” means a local weights and measures authority in Great Britain (within the meaning of section 69 of the Weights and Measures Act 1985)10;”.
(3)
“Complaints – consideration by OFT and qualifying bodies10.
(1)
The following bodies may consider complaints—
(a)
the OFT;
(b)
a qualifying body.
(2)
Where the OFT agrees to consider a complaint, it shall be under a duty to consider that complaint.
(3)
Where a qualifying body agrees to consider a complaint, it shall—
(a)
be under a duty to consider that complaint; and
(b)
notify the OFT of its agreement to consider that complaint.
(4)
The OFT, or as the case may be, a qualifying body shall give reasons for its decision to apply or not to apply for an injunction under regulation 12 in relation to any complaints which these Regulations require it to consider.
(5)
In deciding whether or not to apply for an injunction in respect of a term which the OFT or a qualifying body considers to be unfair, the OFT or the qualifying body may, if it considers it appropriate to do so, have regard to any undertakings given to it by or on behalf of any person as to the continued use of such a term in contracts concluded with consumers. ”.
(4)
Omit regulation 11 (Complaints – consideration by qualifying bodies).
(5)
In regulation 13 (Powers of the OFT and qualifying bodies to obtain documents and information)—
(a)
in paragraph (1), after “The OFT” insert “, a local weights and measures authority or DETINI”;
(b)
in paragraphs (1)(a) and (2)(a) omit “that a contract term drawn up for general use is unfair”;
(c)
in paragraph (2), after “A qualifying body specified in Part One of Schedule 1”, insert “(other than a local weights and measures authority or DETINI),”.
11.
(1)
(2)
In regulation 3 (Interpretation), in the definition of “enforcement authority” omit “the OFT,”.
(3)
In regulation 26(1) (Consideration of complaints)—
(a)
at the end of sub-paragraph (a) omit “or”, and
(b)
“or
(c)
the OFT has agreed to consider the complaint.”.
(4)
“Complaints – consideration by the OFT26A.
(1)
If the OFT agrees to consider a complaint made to it about a breach it shall be under a duty to consider that complaint.
(2)
Paragraphs (3) and (4) of regulation 26 shall apply to the OFT when it is under a duty to consider a complaint as they apply to an enforcement authority.”.
(5)
In regulation 27 (Injunctions to secure compliance with these Regulations)—
(a)
in paragraph (1) for “any other” substitute “an”;
(b)
in paragraph (2) omit “other than the OFT”.
(6)
In regulation 28 (Notification of undertakings and orders to the OFT) omit “other than the OFT”.
(7)
In regulation 29(2) (Publication, information and advice) after “The OFT” insert “or an enforcement authority”.
12.
(1)
(2)
In regulation 2 (Interpretation)—
(a)
““DETINI” means the Department of Enterprise, Trade and Investment in Northern Ireland;”;
(b)
““enforcement authority” means the OFT, every local weights and measures authority and DETINI;”;
(c)
““local weights and measures authority” means a local weights and measures authority in Great Britain (within the meaning of section 69 of the Weights and Measures Act 1985);”.
(3)
For the heading in regulation 13 substitute “Duty and power to enforce”.
(4)
“(1)
It shall be the duty of every local weights and measures authority and DETINI to enforce these Regulations.
(1A)
The OFT may also enforce these Regulations.”.
(5)
In regulation 13(4) for “In determining how to comply with its duty of enforcement” substitute “In determining how to comply with paragraph (1), or as the case may be, paragraph (1A)”.
(6)
In regulation 20(2) (Publication, information and advice) for “The OFT” substitute “An enforcement authority”.
13.
(1)
(2)
In regulation 2 (Interpretation)—
(a)
““DETINI” means “the Department of Enterprise, Trade and Investment in Northern Ireland;”;
(b)
““enforcement authority” means the OFT, every local weights and measures authority and DETINI;”;
(c)
““local weights and measures authority” means a local weights and measures authority in Great Britain (within the meaning of section 69 of the Weights and Measures Act 1985);”.
(3)
For the heading in regulation 19 substitute “Duty and power to enforce”.
(4)
“(1)
It shall be the duty of every local weights and measures authority and DETINI to enforce these Regulations.
(1A)
The OFT may also enforce these Regulations.”.
(5)
In regulation 19(3) for “the Department of Enterprise, Trade and Investment in Northern Ireland” substitute “DETINI”.
(6)
In regulation 19(4) for “In determining how to comply with its duty of enforcement” substitute “In determining how to comply with paragraph (1), or as the case may be, paragraph (1A),”.
This instrument transfers the power of the Office of Fair Trading (“OFT”) to support a consumer advice scheme, within the meaning of article 2, to the National Association of Citizens Advice Bureaux (“Citizens Advice”) and the Scottish Association of Citizens Advice Bureaux (“Citizens Advice Scotland”). The instrument also makes modifications to the OFT’s consumer enforcement functions.
Article 2 transfers the OFT’s power under section 8(1) of the Enterprise Act 2002, of supporting a specified type of public consumer advice scheme to Citizens Advice and Citizens Advice Scotland. It abolishes the OFT’s equivalent power in relation to Northern Ireland, except in so far as it relates to postal services. Article 3 amends the Enterprise Act 2002 to make clear that the OFT may no longer support the specified type of public consumer advice scheme.
Article 4 makes consequential amendments to Part 9 of the Enterprise Act (information sharing).
Articles 5 and 6 make consequential amendments to section 8 of the Utilities Act 2000 and section 51 of the Postal Services Act 2011 as concerns the funding arrangements of the public consumer advice scheme. They ensure that levy payments are no longer made to the OFT but rather to Citizens Advice and Citizens Advice Scotland.
Article 7 adds Citizens Advice to Part 6 of Schedule 1 to the Freedom of Information Act 2000 for the purpose of the function transferred to them under this Order. Article 8 adds Citizens Advice Scotland to Part 7 of Schedule 1 to the Freedom of Information (Scotland) Act 2002 for the same purpose.
Article 9 amends section 214 of the Enterprise Act 2002. There are a number of enforcers under Part 8 of the 2002 Act, primarily the OFT, local weights and measures authorities in Great Britain (known as Trading Standards authorities) and the Department of Enterprise, Trade and Investment in Northern Ireland. There are also a number of sectoral regulators. These enforcers may seek an enforcement order in relation to the enforcement of consumer infringements. As a result of this Order Part 8 enforcers, other than the OFT, will no longer be required to consult with the OFT before they make an application for an enforcement order. Instead, enforcers will be required to notify the OFT that they are making an application.
Articles 10 to 13 amend the Unfair Terms in Consumer Contracts Regulations 1999, the Consumer Protection (Distance Selling) Regulations 2000, the Business Protection from Misleading Marketing Regulations 2008 and the Consumer Protection from Unfair Trading Regulations 2008, to provide that the OFT will have a power rather than a duty to enforce those regulations.
An impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from the BIS website at www.bis.gov.uk and is published with the Explanatory Document alongside the instrument on www.legislation.gov.uk . A copy has also been placed in the Libraries of both Houses of Parliament.