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Published online by Cambridge University Press: 02 May 2016
This article examines critically the extent to which the availability of Enhanced Consumer Measures (ECMs) created by the Consumer Rights Act 2015 addresses the problems associated with the enforcement of consumer protection law in the UK. The article explains the genesis of the provisions by establishing the limitations of the previous law before moving on to consider the extent to which ECMs are successful in addressing those limitations. The article argues that, while the availability of ECMs will potentially improve the ability of both enforcers and courts to achieve some objectives of consumer protection law, the measures raise some significant concerns. Of particular concern is the extent to which they signal a move away from prosecution in cases in which that would be the optimal response, and so compromise the ability of consumer protection law to achieve some of its most important objectives.
1 The number of laws is too great to repeat here.
2 P. Cartwright, Consumer Protection and the Criminal Law (Cambridge 2001).
3 See R. Macrory, Regulatory Justice: Making Sanctions Effective (November 2006) and A.J. Reiss, “Selecting Strategies of Social Control Over Organisational Life” in K. Hawkins and J. Thomas (eds.), Enforcing Regulation (Boston 1984).
4 Macrory, ibid.
5 See T. Wilhelmsson, “Consumer Law and Social Justice” in I. Ramsay (ed.), Consumer Law in the Global Economy (Aldershot 1997), 217.
6 Ibid.
7 Leff, A., “Unconscionability and the Crowd: Consumers and the Common Law Tradition” (1970) University of Pittsburgh L.Rev. 349Google Scholar at 356.
8 I. Ramsay, Rationales for Intervention in the Consumer Marketplace (London 1984).
9 This contrasts sharply with a theme identified a decade earlier towards criminal sanctions in regulation. See in particular Baldwin, R., “The New Punitive Regulation” (2004) 67 M.L.R. 351CrossRefGoogle Scholar.
10 P. Hampton, Reducing Administrative Burdens (London 2005).
11 Ibid., recommendation 8.
12 Regulatory Justice: Sanctioning in a Post-Hampton World (May 2006) (hereafter “Macrory”).
13 Macrory, Making Sanctions Effective, note 3 above.
14 Macrory, ch. 2.
15 J. Peysner and A. Nurse, Representative Actions and Restorative Justice (Lincoln 2008); UEA, Benchmarking the UK Framework Supporting Consumer Empowerment (ESRC Centre for Competition Policy 2008).
16 I. Ramsay, Consumer Law and Policy, 3rd ed. (Oxford 2012), 221–22.
17 See Cartwright, P., “Crime Punishment and Consumer Protection” (2007) 30 J.C.P. 1Google Scholar.
18 Macrory, para. 2.6.
19 See Becker, G., “Crime and Punishment: An Economic Approach” (1968) 76 Jl.Pol.Econ. 169CrossRefGoogle Scholar and A. Ogus, Regulation: Legal Form and Economic Theory (Oxford 1994), 91.
20 Reiss, “Selecting Strategies”, note 2 above, p. 23.
21 Ibid., pp. 22–23.
22 I. Ayres and J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York 1992).
23 Ibid., at p. 21.
24 Macrory, para. 2.24.
25 See Coffee, J.C. Jr, “‘No Soul to Damn no Body to Kick’: An Unscandalized Inquiry into the Problem of Corporate Punishment” (1981) 79 Mich.L.Rev. 386CrossRefGoogle Scholar.
26 This relates to the issue of stigma, considered below.
27 Macrory, para. 1.14.
28 A. Ogus, “Better Regulation–Better Enforcement” in S. Weatherill (ed.), Better Regulation (Oxford 2007), 107, 112.
29 BIS, Civil Enforcement Remedies – Extending the Range of Remedies Available to Public Enforcers of Consumer Law – Impact Assessment (Impact Assessment), November 2012, para. 25.
30 Macrory, para. 2.27.
31 Macrory, paras. 2.24 and 3.25.
32 Neither mens rea nor damage/loss is typically required for guilt.
33 Macrory, para. 1.21.
34 See e.g. Peysner and Nurse, Representative Actions, note 15 above.
35 See below.
36 Sections 211 and 212, respectively.
37 Section 214(1A).
38 Section 218(1)(c).
39 Section 214(2) defines it as consultation for the purpose of achieving particular objectives such as cessation of, or ensuring there is no repetition of, an infringement.
40 B. Lewin and J. Kirk, Trading Standards Law and Practice, 2nd ed. (Bristol 2011), 49.
41 Section 219(4).
42 BIS Impact Assessment, para. 23.
44 In their view, difficulties have arisen primarily through choosing inappropriate cases and creating undue delays. Lewin and Kirk, Trading Standards Law, note 40 above, p. 45.
45 BIS Impact Assessment, para. 26. Trading standards officers now have rights of audience although it is not clear how frequently they will present the case.
46 Consumer Rights Bill, Hansard, 1 July 2014, col. 1666.
47 Although enforcement orders are admissible as evidence in civil proceedings.
48 BIS, Civil Enforcement Remedies: Consultation on Extending the Range of Remedies Available to Public Enforcers of Consumer Law (“Civil Enforcement Remedies”) (November 2012), para. 4.
49 Ibid.
50 Ibid.
51 Macrory.
52 Macrory, Making Sanctions Effective, note 3 above, para. 2.3.
53 Macrory, box E2.
54 BIS, Civil Enforcement Remedies, ch. 2. RESA was introduced as a way of implementing Macrory's proposals but does not apply to consumer protection.
55 BIS, Enhanced Consumer Measures – Guidance for Enforcers of Consumer Law, May 2015 (“2015 Guidance”), Case Study 3.
56 Macrory, box E2.
57 2015 Guidance, para. 48.
58 BIS, Draft Consumer Rights Bill Government Response to the Consultations on Consumer Rights, June 2013, p. 48.
59 This takes the form of enforcement undertakings in RESA.
60 Law Society, Civil Enforcement Remedies, January 2013.
61 2015 Guidance, para. 45.
62 2015 Guidance, para. 28.
63 2015 Guidance, para. 73.
64 Ayres and Braithwaite, Responsive Regulation, note 22 above.
65 2015 Guidance, para. 53.
66 OFT Consultation Response.
67 Ibid.
68 See e.g. OFT, Consumer Law and Business Practice (OFT 1225 June 2010); S. Oded, Corporate Compliance (Cheltenham 2013), para. 3.2.1.
69 Macrory, box E2.
70 Given the compliance stance of enforcers, prosecution is not the norm now.
71 Regulation 27A.
72 BIS, Consumer Rights Bill: Proposals on Enhanced Enforcement Remedies Impact Assessment: Final (“Impact Assessment”) (June 2013), para. 44.
73 See 2015 Guidance, para. 59.
74 2015 Guidance, para. 58.
75 2015 Guidance, Case Study 6.
76 Ibid.
77 See Pederson, O.W., “Environmental Enforcement Undertakings and Possible Implications: Responsive, Smarter or Rent Seeking?” (2013) 76 M.L.R 319CrossRefGoogle Scholar.
78 Ibid., at pp. 333–41.
79 In a slightly different context, see the case study on Kepone and Allied Chemical in B. Fisse and J. Braithwaite, The Impact of Publicity on Corporate Offenders (Albany 1983), ch. 6.
80 2015 Guidance, para. 46.
81 2015 Guidance, Case Study 7.
82 BIS, Civil Enforcement Remedies, para. 4.
83 2015 Guidance, Case Study 8. Such practices are not uncommon.
84 See Cartwright, P., “Publicity Punishment and Protection: The Role(s) of Adverse Publicity in Consumer Policy” [2012] L.S. 179Google Scholar.
85 Ibid.
86 Hampton, para. 3.64.
87 London Economics, Consumer Detriment under Conditions of Imperfect Information (London 1997).
88 Ibid.
89 Civil Enforcement Remedies, para. 3.22
90 S. Brooker, Regulation and Reputation (London 2006), 7.
91 Unusually, the professional diligence provision requires proof of mens rea, although what precisely that entails remains unclear. See Cartwright, P., “Unfair Commercial Practices and the Future of the Criminal Law” [2010] J.B.L. 619Google Scholar.
92 [2011] EWHC 106 (Ch), at [5].
93 See K. Yeung, Is the Use of Informal Adverse Publicity a Legitimate Regulatory Compliance Technique? (Melbourne 2002), 40.
94 Coffee, note 25 above; Yeung, ibid., at pp. 40–41.
95 Not that shame operates only in a retributive sense. See J. Braithwaite, Crime, Shame and Reintegration (Cambridge 1989).
96 Civil Enforcement Remedies, para. 1.8.
97 This was indeed the view of BIS at the time (discussion on file with the author).
98 Civil Enforcement Remedies, para. 5.
99 2015 Guidance, p. 5.
100 2015 Guidance, Case Study 2.
101 Trading Standards estimated that 476 cases which were prosecuted in 2011–12 might have been suitable for civil action had better remedies been in place. See BIS, Impact Assessment, para. 16.
102 Cartwright, Consumer Protection, note 2 above, pp. 222–30.
103 It will be relevant in some cases, such as where directors are prosecuted for offences committed by their companies with their consent connivance and neglect, and potentially in cases in which a defence such as due diligence is pleaded.
104 A. Von Hirsch, Doing Justice (New York 1976).
105 R. Kagan and J. Scholz, “The ‘Criminology of the Corporation’ and Regulatory Enforcement Strategies” in K. Hawkins and J. Thomas (eds.), Enforcing Regulation (Dordrecht 1984).
106 C. Wells, Corporations and Criminal Responsibility, 2nd edn. (Oxford 2001), ch. 2.
107 Cartwright, Consumer Protection, note 2 above, pp. 78–79.
108 See T. McDermott, “Enforcement and Credible Deterrence in the FCA”, available at <http://www.fca.org.uk/news/speeches/enforcement-and-credible-deterrence-in-the-fca> (last accessed 10 August 2015).
109 Kagan and Scholz, “The ‘Criminology of the Corporation’”, note 105 above.
110 [1985] A.C. 272, 293.
111 Wells, Corporations, note 106 above, p. 31.
112 Macrory, paras. 1.21 and 2.27.
