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Consumer Rights Bill

Volume 757: debated on Monday 8 December 2014

Third Reading

Clause 21: Partial rejection of goods

Amendment 1

Moved by

1: Clause 21, page 13, line 17, leave out “(14)” and insert “(17)”

My Lords, these three amendments are minor and technical amendments to tidy up the Bill. Amendment 1 simply serves to update a cross-reference in Clause 21 to make sure that the Bill’s requirements relating to how refunds are paid apply also where the consumer rejects only some of the goods.

Amendment 2 adds Clause 38—other pre-contract information included in the contract—to the list of provisions in Clause 48(1) from which the trader cannot “contract out”. It corrects an omission and aligns the clause with Clause 31(1) for goods.

Amendment 4 simply retains some provisions originally considered to be obsolete. The provisions concerned insert provisions into the Criminal Justice and Police Act 2001 which we now consider need to be retained. I beg to move.

My Lords, at this stage of a Bill, I always feel that the subject matter should be aspirational, involving the high reaches of policy-making and big speeches. It is always a slight disappointment when we deal simply with technical matters. However, I congratulate the Minister on raising the issue. I am glad that she has done so and even gladder that she was able to battle through the noise made by those leaving the Chamber in such numbers as she was speaking. I am sure she will be delighted to hear that we fully support these amendments.

However, we were expecting to see in today’s Marshalled List amendments concerning issues that had been raised by Ofcom. We had understood that such amendments would be tabled, given the meetings arranged by another government Minister, which were attended by many Members of this House, on the subject of provider-led switching and whether or not the Government might support measures to reduce anti-competitive behaviour in relation to the internet. However, those amendments are not in the Marshalled List. Will the noble Baroness comment on that situation?

My Lords, I understand that my honourable friend Mr Ed Vaizey is dealing with this issue. I think we have the powers that we need, and we discussed this on a previous occasion. As I say, my right honourable friend is dealing with the issue. We are not in a position to add a provision to the Bill but I assure the noble Lord that the issue is being progressed very keenly.

My Lords, I do not know whether I am in order in speaking now but, before the Minister sits down, it may help the House to hear that I have received correspondence which I assumed had been copied to other noble Lords around the House on precisely the two matters which the noble Lord, Lord Stevenson, mentioned. One was a letter from my noble friend Lady Neville-Rolfe and the other was a letter from my honourable friend Ed Vaizey, so they have responded to the amendments tabled on Report—not wholly positively, I may say, but they have responded and set out their reasons for doing things other than agreeing to the amendments that were tabled on Report.

Amendment 1 agreed.

Clause 48: Liability that cannot be excluded or restricted

Amendment 2

Moved by

2: Clause 48, page 32, line 11, after “described),” insert—

“(ca) section 38 (other pre-contract information included in contract),”

Amendment 2 agreed.

Amendment 3

Moved by

3: After Clause 82, insert the following new Clause—

“Appointment of judges to the Competition Appeal Tribunal

(1) In section 12(2) of the Enterprise Act 2002 (constitution of the Competition Appeal Tribunal) after paragraph (a) insert—

“(aa) such judges as are nominated from time to time by the Lord Chief Justice of England and Wales from the High Court of England and Wales;(ab) such judges as are nominated from time to time by the Lord President of the Court of Session from the judges of the Court of Session;(ac) such judges as are nominated from time to time by the Lord Chief Justice of Northern Ireland from the High Court in Northern Ireland;”.(2) In section 14 of that Act (constitution of the Competition Appeal Tribunal for particular proceedings and its decisions)—

(a) in subsection (2) after “the President” insert “, a judge within any of paragraphs (aa) to (ac) of section 12(2)”, and(b) in subsection (3) for “either” substitute “the judges within paragraphs (aa) to (ac) of section 12(2),”.(3) In Schedule 4 (Tribunal procedure) to that Act, in paragraph 18(3)(b) (consequences of member of Tribunal being unable to continue) after “if that person is not” insert “a judge within any of paragraphs (aa) to (ac) of section 12(2) or”.”

My Lords, noble Lords who were in the House during the second day of Report will have heard the case presented by the noble and learned Lords, Lord Hope of Craighead and Lord Mackay of Drumadoon, in support of their amendments. Both were intended to remove a potential barrier to judges sitting in the Court of Session or the Northern Ireland High Court, from sitting as chairs in the Competition Appeal Tribunal. As I told the House at the time, I shared those concerns. I have met with the noble and learned Lords and I believe that the amendment before us today will address the issues they raised. I am pleased that we have been able to make progress on this matter.

First, as a consequence of the proposed government amendment, the Judicial Appointments Commission will no longer be required to recommend the appointment of judges as CAT chairs to the Lord Chancellor. Instead, the Lord Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice for Northern Ireland may nominate any suitably qualified individual who is already a judge sitting in the relevant court to be deployed as a CAT chair. This includes the Court of Session and the High Court in Northern Ireland. We are also providing that nominations in England and Wales may be from any division of the High Court, rather than restricted to the Chancery Division as at present. This will ensure that CAT chairs are drawn from the widest possible pool of expertise.

Moving to a nomination process will also address concerns that the noble and learned Lord, Lord Hope, spoke about in relation to the limited appointment terms currently applying to CAT chairs. Currently, chair appointments are restricted to a maximum of eight years. As a consequence, experienced judicial officeholders are required to stand down regardless of their age and whether they wish to continue to serve. This requirement results in loss of expertise from the tribunal.

As part of the move to a nomination process, we will no longer impose such a limit on judicial officeholders who are nominated. Instead, judges will be eligible to be deployed to sit as CAT chairs until they retire or resign from their existing judicial office; if at any time they cease to sit in their judicial office, they would also cease to be a CAT chairman.

I should make clear that the changes I have set out here will apply only to those who are full-time salaried judicial officeholders. Fee-paid CAT chairmen—private practitioners who want to hold a part-time judicial office for the first time, or to add another part-time judicial office to their portfolio—will continue to be recruited through the Judicial Appointment Commission selection process and be subject to an eight-year term of appointment. I am sure that noble Lords will agree that this is an appropriate amendment, ensuring as it does that judges from all the UK’s jurisdictions are able to be deployed to sit in the CAT.

Before I sit down, I would like to convey my warmest thanks to my noble friend Lady Jolly who has provided me with such valuable support and assistance, and of course to the Bill team drawn from several departments, a great example of joined-up government. It has been a very great pleasure to steer this, my first Bill through your Lordships’ House and to engage with noble Lords on every side so very constructively. I beg to move.

My Lords, I am grateful to the Minister for bringing forward these amendments. As she explained, the initiative was taken initially by me and the noble and learned Lord, Lord Mackay of Drumadoon, at the request of the Lord President in Scotland and the Lord Justice of England and Wales. Their concern about the need for these amendments was, to some extent, due to the extended jurisdiction of the Competition Appeal Tribunal, which is the result of other provisions in the Bill.

As it is, the amendment that has been proposed today addresses all the concerns of all three senior judicial officers. I express on behalf of myself and the noble and learned Lord, Lord Mackay, our gratitude to the Minister and her Bill team for meeting us and checking whether the amendment would meet with our approval. We were happy to say that it did. This is a good example of the way that the House works to solve a technical, but not unimportant, problem. It says a great deal for the Government that they were prepared to accept this suggestion.

My Lords, I would like to add my congratulations to the noble and learned Lord, Lord Hope of Craighead, on bringing forward this amendment, following the advice that he had. It has been made very much, if I may say so, towards the last minute, but it is clearly a very necessary amendment because the responsibilities of the Competition Appeal Tribunal will be greatly widened by the Bill. If the House will forgive me, I will say a few words about Schedule 8, which does the widening. These are not the sort of words that will become entirely suitable when we consider whether the Bill do now pass—I had a grandfather who said “powder before jam”, and those who are as old as me will remember that it was Gregory-powder.

Schedule 8 makes a complex and major change to the law. It greatly widens the responsibilities of the Competition Appeal Tribunal. Similar jurisdictions have done the same sort of thing with opt-out arrangements for redress, and similar jurisdictions have had problems. I think that we have not thought this through nearly carefully enough. We live in a society where we aim to minimise disputes and maximise social cohesion. We do not want to incur additional costs when we know we have not got any more money.

What happened to scrutiny in your Lordships’ House? It may have something to do with this being a long Bill and this important part of it being put in a schedule very near the end. It may have something to do with it amending two other Bills. It might be something to do with trying to minimise the significance of the change. However, I have to say that Her Majesty’s Opposition did not really join the debate at all. Maybe they think it is a good Labour measure; it would be unsurprising if they did so. Maybe they were in thrall to Which?. The Cross Benches—apart from the noble and learned Lord, Lord Hope—did not play any part in the Bill and nor did my legally qualified friends on the Liberal Democrat Benches. I wonder why not, in circumstances of such a major change.

To conclude, Her Majesty’s Government have changed their position during the progress of the Bill. A lot of safeguards were promised after the House of Commons Committee reported on the Bill, but those have mostly disappeared. The House of Commons suggested that the Secretary of State should be subject to affirmative resolution when it came to the rules of the tribunal, to which we have already had reference; now the Secretary of State—I wonder who that will be—will be subject to a negative instrument only. All this has gone on while the public, as far as I am concerned as I played some part in Schedule 8, expressed no interest in this change—no interest at all that I have seen. They probably see it just as a Westminster village lobby measure. This is at a time when the two great parties of our nation are in decline; the third one I leave noble Lords to judge for themselves. At this stage in our history it is sometimes better to defer something, however good an idea it seems to both Front Benches. When both Front Benches agree one has to have doubts. To me, this is an excellent example of what not to do and how not to do it.

My Lords, I think it would be in order to make my comments, which are not on these amendments, after the Motion is put in a moment. I look forward to doing that.

In that case, I will make my comments now. We agree with the amendments in this group but, unlike the noble Viscount, Lord Eccles, we very much welcome Schedule 8. This is not because we are in hock to Which?, although it has played a very good role in the Bill, but because we have campaigned on this for many years. Why should it be that when a company has broken competition law, the consumers who have been ripped off do not get compensation? That is what Schedule 8 deals with and I congratulate the Government very strongly on it. Just occasionally, it may be that consensus in the House is because we are doing the right thing, not the wrong one.

I will say my final words about the Bill now, because I hope it will be the last time we see it back. I hope we will hear shortly, from the noble Lord, Lord Moynihan, and the noble Baroness, Lady Heyhoe Flint, that the Government will not seek to bring this Bill back by overturning in the Commons the view of this House on ticket touting. We hope the other place will see sense and accept this and that this will, therefore, be the final time we see the Bill here. Because of that, I would like to thank the Ministers, the noble Baronesses, Lady Neville-Rolfe and Lady Jolly, for their hard work and co-operation on the Bill and I pay tribute, as they have done, to the dedicated and professional Bill team, who have seen us, as well as them, through the process. I would also like to thank and pay tribute to the support and hard work put in by my noble friends Lady King—for whom it was her debut Bill on the Front Bench—and Lord Stevenson of Balmacara. However, the three of us could never have stood here without the behind-the-scenes expertise of our PLP colleague, Nicola Jayawickreme, to whom we owe a great debt of gratitude.

The Bill leaves this House looking very different from how it arrived. The Government chose in effect to bring forward the introduction of their rules on transparency for letting agents by writing the details in the Bill, and I congratulate them on that. The Ministers with, I am sure, help from their officials, also met—in full or in part—many of the suggestions we made. They agreed in full to no charge on returning faulty goods, to the right for all higher education students to take complaints to the Office of the Independent Adjudicator and to mandatory caller-line identification for marketing calls as a way of tackling nuisance calls. They also largely accepted our amendment over no deduction for use for faulty goods, leaving this measure applying only to cars. Thanks to input from the noble Lord, Lord Best, the Government amended the wording to clarify the fact that trading standards have to give 48 hours notice only before a routine visit. They also agreed to a review of that in two years’ time. Although they could not agree with us that client money protection should be made mandatory, they have required transparency which we hope will drive change in this area. They have agreed to a review of product recall for dangerous electrical goods and we hope this will improve practice in that area. Furthermore, as a result of the concerns raised in this House about the impact on children of exposure to payday loan ads on television and the calls for a watershed, the body that controls the Code of Broadcast Advertising is to consider whether change is needed to both the content and timing of such advertisements.

This is testimony to the listening and negotiating skills of the Ministers, to the support of many noble Lords for these changes and, in particular, to the role of this House in scrutinising and improving legislation. A wide range of thanks are due to a large number of people.

My Lords, since the noble Baroness has broadened the scope of the debate from the immediate context of the government amendments, perhaps I may thank noble Lords on all sides of this House for their support for the protection of consumers, which is now embedded in Clause 33. In particular, I thank my noble friend the Minister and the officials who have gone beyond the call of duty in listening to a wide array of governing bodies of sport which are committed to seeking protection for consumers and, in this case, for sports fans. I do not expect my noble friend to say what the Government will do in another place but, in thanking noble Lords who have supported the amendment I absolutely give an assurance that my noble friends and I who moved the amendment will apply characteristic vigour in discussions with Ministers in another place to ensure that consumers are protected in the way in which we sought in this clause. In conclusion, I again thank my noble friend the Minister. She has done an outstanding job on this Bill, which has been a tough Bill. Now amended, the Bill will go to another place. I hope that the other place will recognise the importance that should be attached to protecting consumers, particularly sports fans, which we sought to achieve through new Clause 33.

As these are the final moments in which to say farewell at last, the Minister might be interested to know that I received in my post today from John Lewis a piece of paper complying with the regulations in the new EU directive. She has assured us several times that they are not due to be implemented yet, but John Lewis has decided to implement them. When I questioned that decision, it answered, “Oh no, this has been law since March of this year”. At a later date when I can put this question more formally to my noble friend, she might want to enlarge on that.

My Lords, back-tracking slightly, I echo all that my noble friend Lord Moynihan has said, as well as his and our cross-party thanks to the Bill team and to my noble friends the Minister and Lady Jolly. They met the persistence from our side in the early stages with such courtesy and patience. I hope the Minister accepts that we simply are trying to protect those hard-working fans who spend their hard-earned money on watching sport or entertainment—I know that “hard-working” is very much a buzzword of the Government. That is where we are coming from and why we wish to continue to press this issue as regards the Bill. It slightly embarrasses me that the Government seem more keen to protect those operating as ticket touts—perhaps I should change that name to preserve the not-so-innocent and call them “secondary sellers”.

Surprisingly, you get more protection when buying a tin of baked beans. Heinz—or Crosse & Blackwell or whatever brand you use—manages to stick on all the necessary details of the content within, as well as the redress if you are not satisfied with what you have got. In the ticket-touting amendment, we tried to say that what is on the tin is what the consumer will get. The ticket market should be obliged to provide the same honest details on their sites—obviously, I hope that they do not have “Heinz” or “Crosse & Blackwell” in brackets. I trust that the Minister will agree with the cross-party feelings behind this Bill and with those of all the national governing sports bodies that a fair deal is given to all consumers. We are very happy to discuss the matter further.

Finally, perhaps I may add that I do not have any tickets for the Ashes series next summer.

My Lords, inspired by my noble friends Lord Moynihan and Lady Heyhoe Flint, I thought that I, too, should get my retaliation in first before we pass the Bill. I was provoked by the noble Viscount, Lord Eccles, almost to wave my practising certificate as a legally qualified Member on these Benches, but I did not take part in assessing the virtues of Schedule 8 because I certainly agree with it as well. I agree that the Bill is in better shape now than when it entered the House, and that is a great tribute to my honourable friend Jo Swinson in the other place, as she had a strong hand in creating the Bill’s architecture. That is not to say that there were not valuable qualifications and changes made as it passed through this House. In particular, I thank the Minister and my noble friend Lady Jolly for the clarifications that they gave to the motor manufacturing industry with regard to one repair, and the clarification and the Pepper v Hart-type statements that they gave to the software industry as well. In future years those will prove extremely valuable.

Of course, there are still a number of bees buzzing in my bonnet. Lookalikes will continue to be an issue that I am sure will be raised on further occasions, and I hope that progress will continue to be made. There are a number of other areas—such as Ofcom powers, which were raised by the noble Lord, Lord Stevenson—on which I hope further progress will be made. I am somewhat concerned about some of the unintended consequences of the definition of “consumer”, which, strangely enough, we did not debate in this House but which may well crop up in the future. I, too, thank my noble friends very much for all their help. “Hard work and co-operation” were the words that were used, and I thoroughly agree with that.

My Lords, having played some part in the arguments on difficult subjects in the Bill, I also thank the Minister for the courtesy and care with which she approached it. This was her first Bill and it bodes enormously well for future Bills. I hope she will carry from the House an understanding that this is a Bill on which this House has done its job very well. It has shown why this House is here and how changes can be introduced, encouraged and made in a non-partisan manner. It is important that the Government recognise that one major amendment was of precisely that kind. When all those with a direct interest in and knowledge of the sporting world have supported a change, and when every sporting authority has supported that change, it would be as well for the Government to recognise that making such changes is precisely what the House of Lords is here for. They should not seek to reverse something in those circumstances, for those circumstances range much further than the simple matter of asking those who sell tickets to be as concerned about their customers as those who sell baked beans are about theirs.

My Lords, I had not expected a debate on secondary ticketing, so I will not delay the House for very long. There is an alternative argument. I would dispute the idea that this change is necessarily in the interest of consumers. It may well be in the interest of the sporting establishment but not necessarily in the interest of consumers. It might actually drive secondary ticketing more into the hands of street touts rather than the formalised, recognised secondary ticket sellers who give guarantees that the tickets are genuine. That is a debate for another time, but someone ought to make the argument.

I have greatly enjoyed working on this Bill. The coalition side has worked well together and I congratulate the noble Baronesses, Lady Neville-Rolfe and Lady Jolly, on all their work to keep us in touch with the developments. I have also enjoyed working opposite the noble Lord, Lord Stevenson, and the noble Baroness, Lady Hayter, and alongside my colleagues and noble friends Lady Bakewell and Lord Clement-Jones. I look forward to the Bill going to the Commons now, and I imagine that at some stage it will return here.

My Lords, I am grateful to my noble friend Lord Eccles for his engagement on the CAT rules and I have noted with interest the points he made today. We have had several discussions during the passage of this Bill and I am already planning to meet with my noble friend to discuss how he might input into the forthcoming consultation on those rules, which are the right place to look at his concerns. My office is in contact with him to arrange a suitable date and I look forward to that meeting.

I am also most grateful to my noble friends Lord Moynihan and Lady Heyhoe Flint for all their efforts, and to my noble friend Lord Stoneham for his unstinting attendance at our debates on the Bill. I have listened closely to the debates in this House on the resale of tickets and I thank all noble Lords who have brought their expertise to bear on them. As noble Lords are aware, this is a complex issue and one where a number of important matters have to be balanced. We want British sport to flourish and to protect fans, and we also want the resale market to stay above ground in the interests of consumers and sports goers. That is why, since our debate on Report, I am taking the time to continue with discussions of these issues with my ministerial colleagues.

I was delighted to hear from my noble friend Lady Oppenheim-Barnes that John Lewis, at least, is ahead of the curve, and I join my noble friend Lord Clement-Jones in thanking my colleague the honourable Jo Swinson in another place for all her work on this important Bill.

My noble friend Lady Jolly and I are overwhelmed by the kind comments of noble Lords. I am particularly grateful to the noble and learned Lord, Lord Hope, for his gracious words, and to the noble Baroness, Lady Hayter, for hers. I join her and my noble friend Lord Deben in agreeing that we have improved the Bill as a result of the process of scrutiny that this House is famous for.

Amendment 3 agreed.

Schedule 6: Investigatory powers: consequential amendments

Amendment 4

Moved by

4: Schedule 6, page 109, line 20, leave out paragraph (e)

Amendment 4 agreed.

In the Title

Amendment 5

Moved by

line 4, after “law” insert “and the Competition Appeal Tribunal”

Amendment 5 agreed.

Bill passed and returned to the Commons with amendments.