Schedule 5: Investigatory Powers etc.
351.This Schedule contains a generic set of powers, which is based on those currently contained in Part 4 of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). This is because CPRs are relatively modern; reflect current business practices; build on similar existing legislation and can be used to investigate breaches which may lead to criminal or civil proceedings. Some specific powers contained in weights and measures and product safety legislation will be retained in that legislation alongside the generic set.
352.As well as consolidating powers that already exist, stronger safeguards have been added to the use of some powers in order to reduce the burdens on businesses. For example, subject to a number of exemptions, the power of entry into premises without a warrant cannot be exercised unless a notice in writing has been given to the occupier at least two working days before an inspection is carried out and the power exercised. This requirement applies to routine inspections only and the Schedule sets out those circumstances that would not amount to a routine inspection.
353.As a consequence of consolidating these powers, some modification has been necessary to the existing powers, either to ensure compliance with EU obligations, or to align powers across consumer law in order to ensure that the powers contained in the generic set are simple and consistent. For example, the generic set includes a power to require production of information under paragraph 14 of Part 3 of the Schedule, which is based on Part 8 of the EA dealing with civil enforcement but which will now apply to both civil and criminal consumer law enforcement.
354.In some instances, a limitation has been specifically placed on the use of a particular power. For example, the power to require production of information can only be used if the enforcer reasonably suspects a breach of legislation. This limitation does not apply, or apply in the same way, for all types of enforcer.
355.The generic set of powers applies to all enforcers detailed in the Schedule except where access to powers is specifically limited for particular enforcers. For example, the powers of unfair contract terms enforcers and public designated enforcers, are restricted to the power to require production of information.
356.Paragraph 1 of Part 1 provides an overview of the Parts of Schedule 5.
357.Paragraphs 2 to 6 detail the types of enforcers that have access to the powers in the Schedule and define the terms used to refer to those enforcers, e.g. EU and domestic enforcers. Paragraph 7 details what is meant by the term ‘officer’ in relation to enforcers whilst Paragraph 8 defines other terms used in the Schedule.
358.Paragraphs 9 to 11 of Part 2 of the Schedule specify the legislation to which the generic set of powers applies.
359.Paragraph 12 introduces a power for the Secretary of State by order to amend the list of legislation to which the generic set of powers applies. This is to ensure that the generic set of powers can be used to enforce any new duties that may in future be prescribed.
360.The order making power would also allow other legislation to be amended, repealed or revoked as a consequence of amending this list. The safeguards on the use of the powers of entry that replace those being repealed must be greater than those that existed before.
361.Paragraphs 13 to 17 of Part 3 of the Schedule detail the power in relation to the production of information. These paragraphs set out the purposes for which the power can be used, the procedure to be followed when using it and how the power can be enforced, as well as limitations on the use of the information obtained.
362.Paragraph 18 clarifies that Part 3 of the Schedule applies to the Crown to the same extent that the relevant powers in Part 8 of the EA (which are being replaced by the powers in the Schedule) applied to the Crown.
363.Paragraph 19 to 20 of Part 4 of the Schedule sets out the purposes for which the further powers in the generic set detailed in this Part may be exercised by domestic and EU enforcers. These further powers are detailed in paragraphs 21 to 34. Table 1 and Table 2 below summarises how the powers in the generic set have been modified compared to those in the CPRs and other relevant legislation. The new safeguards that have been added are highlighted in bold.
364.These provisions in the Act give effect in part to certain EU legislation by providing domestic regulators with the necessary powers for enforcing such legislation. This includes the Regulation on Consumer Protection Cooperation(36), the Regulation on Accreditation and Market Surveillance(37) and the General Product Safety Directive(38).
365.The existing investigatory powers are being repealed or revoked in order to ensure that only the generic set of powers apply in relation to the consumer legislation within the scope of this Schedule.
Table 1: Summary of main modifications from existing investigative powers in the new generic set in Part 3 of Schedule 5 (New safeguards are highlighted in bold)
| Power/Provision | Modelled on | Main modifications from existing provisions |
|---|---|---|
| Paragraphs 13 to 17 – Power to require production of information (by way of a written notice only) | Section 224 to 227 EA | Certain enforcers, such as unfair contract terms enforcers and public designated enforcers, have access to this power only. |
| Some enforcers are required to reasonably suspect a breach before exercising the power. | ||
| Clarifies that it includes a power to require the creation of documents. | ||
| Clarifies that local weights and measures authorities have access to this power specifically for the purposes of fulfilling duties conferred by the Estate Agents Act 1979. | ||
| Can be used for both criminal and civil enforcement purposes. | ||
| Provision is made regarding protection from self-incrimination. | ||
| Paragraph 18 Application to the Crown | Clarifies that Part 3 of the Schedule applies to the Crown when an enforcer is acting for certain purposes. |
Table 2: Summary of main modifications from existing investigative powers in the new generic set in Part 4 of Schedule 5 (New safeguards are highlighted in bold)
| Power/Provision | Modelled on | Main modifications from existing provisions |
|---|---|---|
| Paragraph 19 – Exercise of powers in this Part: Domestic enforcers | Regulation 21(1) CPRs and section 9 Estate Agents Act 1979 | Details the purposes and circumstances in which the powers in this Part can be exercised by domestic enforcers. |
| Clarifies that for the power to require production of documents, the enforcer need not have reasonable suspicion where there is a statutory duty to hold the documents sought or when the enforcer is a market surveillance authority as defined by the Regulation on Accreditation and Market Surveillance (EC 765/2008). | ||
| Clarifies that the powers can be used to investigate undesirable practices under Estate Agents Act 1979 as well as breaches of it. | ||
| Paragraph 20 - Exercise of powers in this Part: EU Enforcers | Details the purposes and circumstances in which the powers in this Part can be exercised by EU enforcers. | |
| Paragraph 21 – Power to purchase products | Regulation 20 CPRs | A new express provision is added to clarify that enforcers may enter premises normally open to the public and inspect products. |
| The definition of officer in paragraph 7(1)(d) extends this power to authorised persons (e.g. volunteers).Clarification that power may be exercised at all reasonable times. | ||
| Clarification that this power can be exercised without first giving notice or obtaining a warrant. | ||
| Paragraph 22 – Power to observe the carrying on of a business | Section 227B(1)(a) EA | A new express provision is added to clarify that enforcers may enter premises accessible to the public to observe businesses. |
| Clarification that the power may be exercised at all reasonable times. | ||
| Clarification that this power can be exercised without first giving notice or obtaining a warrant. | ||
| Paragraph 23 – Power to enter premises without warrant | Regulation 21(1)(a) CPRs (Currently excludes premises used only as a dwelling) | The power excludes entry to premises which are wholly or mainly private dwellings. |
| In relation to routine inspections there is a requirement to give written notice. There must be two working days between the date of receipt of the notice by the occupier and the date of entry by the enforcer. A routine inspection is defined in Schedule 5 as one where none of the circumstances in sub-paragraph (6) apply. These include circumstances where notice would defeat the purpose of the entry, e.g. because an officer reasonably suspects that evidence may be lost or destroyed if notice is given, such as where counterfeit goods are suspected. Notice also need not be given where the occupier has waived the requirement. | ||
| If advance notice is not given, enforcers are required to give notice to occupiers when entering the premises. | ||
| Enforcers are required to provide evidence of their authorisation and identity, whether or not advance notice has been given. | ||
| Clarification that proceedings are not invalid where there is a failure to provide notice or evidence of authorisation. | ||
| Paragraph 24 – Application of paragraphs 25 to 31 | Clarifies that the powers in paragraphs 25 – 31 are only exercisable when the enforcer has entered premises under paragraph 23(1) or under a warrant under paragraph 32 - 33. | |
| Paragraph 25 – Power to inspect products etc. | Regulation 21(1)(a) CPRs | This includes the power to inspect products, records and to examine any procedure on the premises, as well as inspecting any apparatus or fixed installation as defined in Electromagnetic Compatibility Regulations 2006 (SI 2006/3418). |
| Paragraph 26 – Power to test equipment | Weights and Measures Act 1985 and Weights and Measures (Packaged Goods) Regulations 2006 | This power enables enforcers to test weighing and measuring instruments on the premises. |
| Paragraphs 27 – Power to require production of documents | Regulation 21(1)(b) CPRs | Clarifies that this power includes requiring an explanation of documents. |
| Clarification that the power does not permit an officer to require a person to create a document except where documents are held electronically. | ||
| Clarification that the power can be applied to a business under investigation or another person. | ||
| Paragraph 28 – Power to seize and detain goods | Regulation 21(c) CPRs | Requirement for enforcers to provide evidence of their authorisation and identity, whether or not it is requested by the occupier, unless it is impractical to do so. |
| Requirement to issue a written record of goods seized. | ||
| The power is available where an enforcer reasonably suspects goods may disclose a breach of legislation; that goods are liable to be forfeited or that they may be required as evidence in proceedings. | ||
| The time limit on detention for goods is three months, unless they are reasonably needed for longer, e.g. for use in proceedings. | ||
| Requirement for certain enforcers to have regard to any relevant provision on property seizure in a code of practice under section 66 Police and Criminal Evidence Act 1984 or Article 65 Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)). | ||
| Paragraph 29 – Power to seize and detain documents required as evidence | Regulation 21(d) CPRs | Requirement for enforcers to provide evidence of their authorisation and identity, whether or not it is requested by the occupier, unless it is impractical to do so. |
| Requirement to issue a written record of documents seized. | ||
| The power is available where an enforcer reasonably suspects they may be required as evidence in proceedings. | ||
| The time limit on detention for documents is three months, unless they are reasonably needed for longer for use in proceedings. | ||
| Requirement for certain enforcers to have regard to any relevant provision on property seizure in a code of practice under section 66 Police and Criminal Evidence Act 1984 or Article 65 Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)). | ||
| Paragraph 30 – Power to decommission or switch off fixed installations | Regulation 37 Electromagnetic Compatibility Regulations 2006 | Confers a power to decommission or switch off fixed installations (as defined in the Electromagnetic Compatibility Regulations 2006). |
| Paragraph 31 – Power to break open a container/vending machine | Regulation 21(2) CPRs | Clarification that the power includes access to information held on electronic devices, such as computers including those on a network. |
| Clarification on what constitutes a container. | ||
| Paragraphs 32 to 33 – Power to enter premises with a warrant | Combination of Regulation 22 CPRs and 227C EA | Includes a condition that a Justice of the Peace must be satisfied that certain conditions have been met, such as that it is likely that goods or documents may be concealed or interfered with, if notice of entry were given. |
| Where premises are unoccupied or occupier is temporally absent, officers will be required to issue a notice on leaving the premises stating that the premises have been entered under warrant and to leave the premises secured as found. | ||
| Paragraph 34 – Power to require assistance from persons on the premises | Provision under Weights and Measures legislation | Requirement for persons on premises to provide assistance or information reasonably required by the officer. |
| Clarification that the power includes requiring a person on the premises to provide information about the name and address of the packer or importer of a package which the officer finds on the premises. |
366.Additionally, Part 5 of the Schedule provides supplementary provisions. Paragraphs 36 and 37 respectively designate the acts of obstructing officers of enforcers and purporting to act as such an officer when not so authorised as offences. These and other provisions in the generic set are detailed in Table 3 below.
Table 3: Supplementary provisions in Part 5 of Schedule 5 (New safeguards are highlighted in bold)
| Provision | Modelled on | Main modifications from existing provisions in CPRs |
|---|---|---|
| Paragraph 36 - Offence of obstruction | Combination of Regulation 23 CPRs and regulation 24(2)(b) General Product Safety Regulations 2005 | Clarification that this offence applies in relation to powers exercised under Part 4. |
| Includes an offence of recklessly making a statement which is false. Maximum penalties are aligned at level 3 on the standard scale. | ||
| Clarification that a person commits an offence if they give misleading information. | ||
| Paragraph 37 - Offence of purporting to act as officer | Regulation 21(11) CPRs | Clarification that the level of the maximum penalty for this offence may be subject to amendment by section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and regulations made under that provision. |
| Paragraph 38 - Access to seized goods and documents | - | Enforcers must grant reasonable access to goods and documents seized, e.g. so that copies of seized documents can be made. Enforcers may recover the reasonable costs of complying with such a request. |
| Paragraph 39 - Notice of testing goods | Combination of Regulation 24 CPRs and Consumer Protection Act 1987 (CPA) and Electromagnetic Compatibility Regulations 2006 | Clarification that there is a requirement for notice also to be given where the test leads to issuing of a suspension notice or the forfeiture of the goods. |
| Paragraph 40 - Appeals against detention of goods | Section 33 CPA | None. |
| Paragraph 41 – Compensation | Regulation 25 CPRs | None. |
367.Also in Part 6 of this Schedule, the law in relation to the ability of Trading Standards Services is clarified to ensure that they are able to operate across local authority boundaries efficiently and effectively. This is set out at paragraphs 44 to 46 of the Schedule.
(EC) No 2006/2004.
(EC) No 765/2008.
2001/95/EC.