New advisory body for Scottish consumers

While not changing substantive consumer law, it establishes ‘Consumer Scotland’ to provide consumer advocacy and advice. The Scottish government has indicated in its impact assessment that the new body will not be established before September 2020 at the earliest.

Consumer Scotland will advise on consumer law, such as, the Consumer Rights Act 2015, Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

The Act also imposes a duty on relevant public authorities, when making decisions of a strategic nature, to consider the effect of those decisions on consumers in Scotland and the desirability of reducing harm to consumers in Scotland.

After the 2014 referendum on whether Scotland should leave the UK, the Smith Commission recommended the devolution of a number of new policy areas to the Scottish Parliament. Consumer Scotland arises out of that recommendation.  Establishment of the body also comes against the background of a growing focus by policymakers and regulators on the protection of consumers and the fact that it is increasingly recognised that market competition provides only limited protection, especially in sectors such as banking, energy and care homes.  CMA market studies have identified that consumers are often unable to access market benefits.  In addition, there are issues that affect Scotland more significantly than the rest of the UK, such as parcel deliveries, where consumers living in more remote areas of Scotland find that couriers will not deliver to them at all, or only a significantly increased cost.

Consumer Scotland is tasked with providing consumer advocacy and advice with a view to achieving the following outcomes:

• reducing consumer harm in Scotland

• increasing the confidence of consumers in Scotland in dealing with businesses supplying goods and services, and

• increasing the extent to which consumer matters are taken into account by public authorities in Scotland.

There is no specific equivalent body in England and Wales, although the CMA, Which?, Trading Standards, Citizens’ Advice Bureaux and sector regulators such as Ofcom carry out similar functions.  Consumerline and the Consumer Council in Northern Ireland also carry out similar functions.

So what is harm to consumers?

“Harm” is not defined in the Act and has its ordinary meaning.  Examples of harm to consumers are very wide-ranging but might include consumers paying more for goods or services because of unfair marketing practices, or consumers being denied equal access to goods or services without justification because of where they live or other characteristics, such as disability or age.

Consumer Scotland’s functions

Consumer Scotland will have the following functions:

• representative

• research and investigation

• information

Under section 8 Consumer Scotland may exercise its functions on behalf of an individual consumer, so it could advocate in an individual case.

Section 13 requires that Consumer Scotland must, before each programme year, prepare and publish a forward work programme. It must report on its investigations, as well as producing an annual report and, every three years, a consumer welfare report.

Although Consumer Scotland’s own enforcement powers are limited, its investigations could be used to support enforcement action by other bodies, for example, the CMA or local trading standards and businesses operating in Scotland should be aware of its powers to intervene.

The introduction of this new body has not received much press attention to date but for those selling to consumers in Scotland it’s certainly worth keeping abreast of where and how Consumer Scotland focuses its regulatory force, and being well prepared, so as not to fall foul of consumer laws.