Journal of Trading Standards Winter 2021

✚

Consumer vulnerability

Rethinking how we talk about those in need of extra help

✚ TSO turned Chief Exec

Yvonne Rees on her journey to the top of local authority

✚

Energy well spent

The role of trading standards in fighting climate change

✚ Squash the greenwash

On the lookout for false environmental claims

Winter 2021 | www.journaloftradingstandards.co.uk

BALANCIN G ACT

Supporting society under ever greater pressure, trading standards needs to build its profile to keep consumers from losing out

Consumer vulnerability can be hard to spot We can all be vulnerable at times.

Don't assume you know what a vulnerable consumer looks like.

Circumstances, timing, knowledge, health, loss or life events can all play a part.

A guide for businesses to identify consumers who may be vulnerable. www.businesscompanion.info/consumer-vulnerability

Journal of Trading Standards WINTER 2021

Leader

MAKING THE CASE I’m taking up the role of CTSI Chair after nearly 20 years in trading standards, and my tenure begins as the profession faces a raft of challenges, many of them discussed in this issue.

As the cover story sets out (see page 18), the need for trading standards to make the case that it is a vital component of public protection has perhaps never been more pressing.

Louise Baxter Against a rising tide of consumer detriment, not least in the Chair, CTSI scams that have proliferated during the pandemic, trading standards is being tasked with more and more responsibilities, while being given fewer and fewer resources to carry them out.

Is now the time to start saying no, or do we keep filling the gap where other organiations are failing?

As a profession, we have an essential part to play in mitigating the ongoing impact of “We must ensure that COVID-19, and as new strains of the virus the profession retains threaten to disrupt the journey towards economic recovery, we have proved that we are central to the its existing talent and Government’s ‘levelling up’ agenda. We do that by helps members reach tackling vulnerability (page 28), speaking out for consumers (page 24) and holding rogue traders positions of leadership” to account (page 34). We also have a vital role to play in the ‘Net Zero’ agenda, and must advise businesses and protect consumers on a host of green issues, from misleading product claims on foods (page 16) to energy technology installations in the home (page 38).

During my time as Chair I’m particularly keen to focus on qualifications and leadership. The Qualifications Review, which will be taking place in 2022, will hopefully lead to new people and new ideas highlighting the value and impact we have as a profession. As the landscape in which we operate changes, we must ensure our skills remain relevant and up-to-date.

We must also ensure that the profession retains its existing talent and helps members reach positions of leadership from which they can influence policy. We must do more to attract and inspire new recruits by offering them support and mentorship. And last but not least (see page 58), we must all work to call out sexist, racist and discriminatory behaviours that have no place in the modern trading standards profession.

www.JournalofTradingStandards.co.uk

Editor-in-Chief:

Eleni Chalkidou Editor:

Richard Young Designer:

Sam Millard Consultant:

Paul Thomas Evans Lead Developer:

Michael Sadler Videographer:

Panji Kaonga Contributors:

Miles Bennett, Andrew Johnson, Iain Bailey, Steve Playle, Elisabetta Sciallis, Jacqueline Minor, Stephanie Young Writers:

Matt Allwright, Helen Nugent, Richard Young Article suggestions and feedback should be sent to: editor@JournalofTradingStandards.co.uk The Journal of Trading Standards magazine and website are produced on contract by Fourth Estate Creative Ltd. www.fourthestatecreative.com connect@fourthestatecreative.com Printed in the UK by Manson Group Distributed by Gold Key Media Published by the Chartered Trading Standards Institute, 1 Sylvan Court, Sylvan Way, Southfields Business Park, Basildon SS15 6TH. www.tradingstandards.uk 01268 582 200 © 2021, Chartered Trading Standards Institute. All rights reserved.

Views expressed by the authors are not necessarily the views of CTSI.

| 03

Stronger together!

The true benefit of being a CTSI member stems from strength in unity. Collectively our voice becomes louder and our impact deeper.

Established in 1881, the Chartered Trading Standards Institute has a proud association with the profession and continues to represent the interests of all trading standards individuals in both private and public sectors - whether you work in a local authority, a business or are self-employed there is a category of membership for you!

Introduce a friend

£15 £15 Already a member?

Introduce a friend or colleague and receive a £15 Love2Shop voucher

Other benefits include: • Free entry to the CTSI Symposium • Discounted training fees • Free CPPD scheme • CTSI Practitioner status • Exclusive discounts with our membership partners • Free copy of the Journal of Trading Standards twice a year

Professional recognition and pride in being part of a professional body are high on the list of benefits as a CTSI member, along with a route to expert advice and support from our Lead Officer Network and a dedicated Policy Team, ensuring our voice is heard in Government.

Whether you are at the start of your career or a seasoned professional, by becoming a CTSI member you will be joining a community of passionate and like-minded professionals and a Chartered Institute you can be proud of.

For more information or to download an application form visit www.tradingstandards.uk/practitioners/join-us

Eleni Chalkidou Eleni is JoTS Editor-in-Chief.

Richard Young

COLUMNS

Richard is JoTS Editor.

Matt Allwright

E D I TO R I A L B OA R D

E D I TO R S

Editorial

John Herriman

Louise Baxter

Wendy Potts

Chief Executive, CTSI

Chair, CTSI

Immediate past-Chair, CTSI

Louise is also CTSI Lead Officer for Consumer Advice & Education and Head of the NTS Scams Team.

Wendy is also Chair of the Business Members Group and sits on the CTSI Race & Equalities Working Group.

John has held various roles in commercial, local government and non-profit organisations.

Matt is a journalist and presenter of the BBC’s Watchdog and Rogue Traders.

Laura Kane Laura is interim Head of Policy at CTSI.

Tendy Lindsay

Damien Doherty

David MacKenzie

Chartered Trading Standards Practitioner

Chief Inspector for Northern Ireland Trading Standards Service

Trading Standards Manager, Highland Council

C O N T R I B U TO R S

Tendy sits on the CTSI Council and is Chair of the CTSI Race & Equalities Working Group.

Damien has 16 years’ experience and focuses on scams and doorstep crime.

David is a CTSI Lead Officer for e-Commerce with 27 years’ experience in the trading standards profession.

LEGAL

Miles Bennett & Andrew Johnson Miles Bennett and Andrew Johnson are barristers at 5 Paper Buildings and specialists in consumer law.

CPPD

Phil Owen

Gareth Walters

Giles Speid

Service Director Profession Relationships, CTSI

Manager, Monmouthshire Trading Standards Service

Phil has experience across private, public and not-forprofit sectors with a focus on regulatory outcomes.

A CTSI Fellow since 2013, Gareth is Branch Secretary for Wales and Chair of the Welsh Animal Health Panel.

Team Manager - North West Team (Queens Park & Harrow Road wards)

Giles is a trading standards officer and sits on the Race & Equalities Working Group.

Stephanie Young Stephanie is CTSI Lead Officer for Animal Health & Welfare.

Prof Louise M Hassan Professor of Consumer Psychology, Bangor Business School

Louise specialises in understanding consumer protection issues.

www.JournalofTradingStandards.co.uk

| 05

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www.journaloftradingstandards.co.uk The magazine of the Chartered Trading Standards Institute

Contents NEWS & FEATURES

08 | News

COVER STORY

FEATURE

18

24

Our regular look at the success stories, statistics and goings-on in trading standards across the UK.

10 | Voices from the Front Line

Trading standards officers talk about what’s happening on their patch, from energy scams to illicit tobacco.

12 | Let’s squash the greenwash A handy guide to watching out for and tackling misleading ‘greenwashing’ claims, including key facts and resources.

15 | Opinion: Matt Allwright Environmental sustainability requires a rethink of our consumption habits. Does trading standards have a role to play?

Fighting the good fight How can trading standards harness its strengths of adaptability and versatility to thrive under pressure?

Speaking out for consumers How CPIN gives trading standards officers an opportunity to gain a seat at the table when new standards are being developed.

FEATURE

FEATURE

34

38

16 | Opinion: Laura Kane Why trading standards must be on guard against greenwashing as the fight against climate change ramps up.

28 | Theory into practice Professor Kathy Hamilton discusses her work on changing the language around consumer vulnerability.

32 | Opinion: John Herriman

Why trading standards has to do a better job of convincing those in positions of power and influence about its value.

42 | CPPD: Animal food and feed

The Official Control Regulations place new responsibilities for agri-food monitoring on trading standards.

A comedy of errors?

Kingston Council Trading Standards learned some valuable lessons when they decided to make use of the Enterprise Act.

The energy to fight climate change The effort to make businesses and homes greener will require trading standards to play a crucial part.

INTERVIEW

FEATURE

42

46

54 | Legal: Time, please!

Why making sure trading standards teams pay attention to the timeliness of prosecutions is so important.

58 | Last Word Trading standards can benefit from celebrating its diversity and embracing difference, says Eleni Chalkidou.

www.JournalofTradingStandards.co.uk

In conversation: Yvonne Rees A former trading standards officer who heads two local authorities, Yvonne Rees has a wealth of advice about leadership.

Borders to consumer protection As the picture becomes clearer of how EU Exit will affect the rights of UK consumers, we take stock of the emerging landscape.

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Journal of Trading Standards WINTER 2021

Upfront 60 SECONDS

ANIMAL WELFARE PLAN A five-year plan to promote high standards of welfare for all animals in Wales has been unveiled. The Animal Welfare Plan for Wales covers a broad range of ongoing policy work, including statutory guidance for existing regulations, licensing of animal exhibits, welfare of animals in transport, and Codes of Practice.

DISAPPOINTING DECISION CTSI and the Chartered Institute of Environmental Health have voiced “considerable disappointment” that the Government will not consider a ring-fenced fund for regulatory compliance apprenticeships. The Department for Levelling Up, Housing and Communities said it was deprioritising the fund due to pressures on Government finances.

FACTS & FIGURES

The CTSI Diversity Survey 2021 signals the extent to which progress must be made to make trading standards more fair, inclusive and representative (see page 58)

ASPIRING LEADERS PROGRAMME

SUPPORT FOR NEW LEADERS A training programme has been launched to nurture leadership talent in trading standards

PEAT IN SPOTLIGHT A project spearheaded by the Society of Chief Officers of Trading Standards in Scotland (SCOTSS) is examining the peat content of garden compost. The initiative comes in response to increasing concerns about the ecological damage caused by peat harvesting and the introduction of new CMA guidance on misleading environmental claims.

SAVE THE DATE CTSI Symposium 2022 will take place 15-17 June at the Mercure Grand Hotel in Bristol.

As always, the event will offer attendees a packed roster of discussion, training and networking, and address challenges and opportunities for trading standards.

08 |

CTSI COLLEGE OF FELLOWS

COLLEGE OF FELLOWS STEPS UP The CTSI College of Fellows has announced changes to how it operates

52.2%

40%

24.8%

22.8%

10.6%

4.8%

of respondents reported hearing racist, homophobic or sexist language at work

of respondents said they have a chronic physical or mental health condition

of those hearing abusive or inappropriate language said it came from a line manager

of respondents were aged under 35, with 49.2% being aged 50 or over

of those who experienced bullying or abuse said it involved sex discrimination

said they are not open about their gender identity at work or home

CTSI is supporting the professional development of its members with the launch of a new training programme designed to strengthen leadership skills.

The Aspiring Leaders Programme has been designed to benefit trading standards officers, the organisations they work within, and the wider regulatory profession.

Run by Closha Associates and delivered by Nikki Pasek MBE, the online programme will focus on self-development, improving skills and equipping aspiring leaders with the tools to lead their teams and help them influence and inspire others.

The programme is designed to build the confidence and capabilities of officers who would like to develop the skills to take on more responsibility in the future, or who have recently started their first team-leading role.

The programme consists of four individual online bite-size sessions: 'Management values'; 'Inspiring and mentoring'; 'Delivering results'; and 'Creating effective relationships'.

Each session is aimed at helping future leaders understand their responsibilities to themselves, to others around them and throughout their organisation. All sessions run from 9:30-12:30 and dates can be viewed on the Aspiring Leaders Programme Timetable at the link below.

Pasek also delivers the Regulatory Leadership Course, which is approved by the Institute of Leadership & Management.

Sessions are supported with online resources and materials available to download. For further information, please visit www.tradingstandards.uk/ practitioners/professional-training/ aspiring-leaders-programme.

The CTSI College of Fellows, which marked its 70th anniversary this year, has implemented a number of changes in order to become more responsive to the array of challenges the modern trading standards profession faces.

The College has a long history of supporting the Institute and members of the trading standards family. As a Charity it is answerable to the Charities Commission and reports its activities to the Council of CTSI. New updates to the College's activities and processes include the extension of welfare support to members and their families

in times of severe hardship, especially for longer-term educational support for children.

The College is increasing the number of Trustees on its Board from four to 10 in order to give it a wider range of skills and ensure continuity of service provision. Research and education grants are also being made available to a wider range of eligible projects to support the development of the profession.

In addition, the process of nomination and approval of worthy members to become Fellows has been streamlined. For detailed information about the new updates to the College's activities, please contact college@tsi.org.uk.

Winter 2021

Journal of Trading Standards WINTER 2021

CLIMATE CHANGE

GREEN SCAMS ON THE RISE Fraudsters are targeting consumers with bogus energy-efficiency deals

New research conducted by Citizens Advice has discovered that more than 19 million adults in the UK have been targeted by a 'green' scam in the past year. Within that figure, 5.2 million people have fallen victim to the scams, many of which centred around home energy-efficiency products, offers and services.

Most people were contacted by email, phone call or text, with those aged over 55 most likely to be contacted by phone, while younger consumers were more likely to be targeted via email.

Sheila, 76, from Nottingham, was called by fraudsters posing as energy-efficiency specialists. They initially asked if she was aged over 50, and then said the type of fibreglass insulation she had was illegal and could be

a fire hazard. The scammers said they were in the area and offered to come round for a free no-obligation quote.

"I was sure it was a scam so I called Citizen Advice," she said. “They offered me some help with insulation using the Government Green Homes Grant Scheme. I knew that had closed earlier in the year, so that was wrong for a start.

It worries me that people may be taken in by these scammers and hand over large sums of money that they can ill afford to part with.”

Dame Clare Moriarty, Chief Executive of Citizens Advice, said: “With more than two thirds of us thinking about making our homes more energy-efficient, it’s important that we know how to stay safe when going green. Scammers have no qualms about

playing on the need to do our bit for the environment."

CTSI Chief Executive, John Herriman, said: “It's important that consumers are taking green matters seriously, and they should be supported for their decisions, not threatened by unscru-

pulous traders. Reporting concerns to Citizens Advice enables trading standards to get a full picture of the risks to consumers and take the appropriate investigative or enforcement action.”

For more on green issues, see pages 12, 16 and 38.

Trading standards success stories Trading standards enforcement and prevention activities making an impact across the UK

Fighting fakes Counterfeit goods worth an estimated £100,000 were seized by Warwickshire County Council Trading Standards from a market in Nuneaton. More than 6,600 fake branded products were seized on 28 November, including jackets, T-shirts, jewellery and trainers. Investigations are continuing and more raids are planned.

TV pirate sentenced

All that glitters

Westminster City Council Trading Standards, working in partnership with the Federation Against Copyright Theft, has secured a prosecution against an eBay user who was selling internet protocol television (IPTV) devices online.

Fuaad Al-Saegh was handed a two-year custodial sentence, suspended for two years on 5 November.

An Ealing Council Trading Standards investigation has led to a jeweller being fined £7,500 after offering gold for sale without a hallmark. Atif Waseem pleaded guilty to 19 charges under the Hallmarking Act 1973 and one charge under the Consumer Protection from Unfair Trading Regulations 2008 on November 11.

www.JournalofTradingStandards.co.uk

Up in smoke North East Lincolnshire Council Trading Standards seized illicit cigarettes and tobacco with a street value of almost £100,000 on 21 November. Officers discovered 375,000 illicit cigarettes and 14.5kg of tobacco in the loft of a residential property. None of the products conformed to the Reduced Ignition Propensity Regulations.

Tobacco sniffed out A search dog has helped lead officers from Staffordshire County Council Trading Standards to seizures of illegal tobacco. Cooper from BWY Canine assisted in raids at six independent retail premises in Stafford and Cannock in October. Some 36,720 illicit cigarettes and 14.55kg of hand-rolling tobacco were seized.

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Journal of Trading Standards WINTER 2021

Upfront

VOICES FROM THE FRONT LINE

the illicit trade in puppies. This included a variety of messaging to make the public more aware of the dangers of buying a pup from an unknown source.

DIANE BRYSON STRATEGIC INTELLIGENCE ANALYST, TRADING STANDARDS SCOTLAND (TSS) What has been your main area of focus over the past six months?

Lead generators, who gather the personal data of consumers for onward sale, have been quick to recognise the lack of clarity when it comes to energy-efficient home improvements and the grants available. Consumers have been exploited through misleading online adverts encouraging them to input personal details to see if they qualify for particular products. TSS has run Project Maxwell, which involves intelligence development, enforcement activity and a prevention campaign, to tackle these online adverts and make the public more aware.

TSS has also been involved in Project Redpath, which combats

“Consumers have been exploited through misleading online adverts”

10 |

Are there any emerging issues where you are?

In the lead-up to Christmas we see an increase in the sale of counterfeit products online. There has been talk of the possible shortage of goods or delivery concerns – this creates an opportunity for online sellers to exploit the situation and sell more counterfeit products, knowing that people will be keen to get their hands on the latest trends in time for Christmas.

These products, such as children’s toys, may not meet legal safety requirements.

Issues with delays in provision of goods and services in general have been rife, causing detriment which is difficult to resolve satisfactorily. While the volatility of the pandemic and the effects of Brexit have caused issues for resources and supply chains, it appears some businesses are not being as candid or flexible as they perhaps should be in informing consumers prior to purchase and managing their expectations. Evidencing misleading actions and omissions in this regard can be particularly challenging, as is the civil enforcement of wider consumer rights in these scenarios.

What are the obstacles to tackling these issues?

There continue to be a significant volume of misleading adverts on social media for energy-efficiency products. Of particular concern is that many are now using forms within the site for consumers to enter personal details, rather than directing them to third-party websites. This makes it easier for advertisers to run misleading campaigns and more support from social media sites is needed.

The biggest problem linked to the illicit trade in pups is dogs being imported which are sold on to consumers who believe they have been bred locally. More support at the ports and borders is required to stop their onward travel.

LADAN MOHAMUD TRADING STANDARDS OFFICER, LONDON BOROUGH OF HAMMERSMITH & FULHAM (LBHF) What has been your main area of focus over the past six months?

Earlier this year, I assisted in inspections of shop-sold shisha

From misleading ads to illicit shisha tobacco, and animal health to cryptocurrency scams, trading standards professionals discuss the issues on the ground

“The health dangers of hookah smoking are much less recognised than those of cigarettes” products, funded by Operation CeCe. LBHF prioritises tobacco enforcement, but it is the first time we have concentrated specifically on retail shisha. The results – 11 out of 31 ‘successful’ test purchases and subsequent seizures – show there is widespread supply of illegal product that does not have the correct health warnings and is neither notified nor UK duty-paid.

I believe more authorities should target shisha; the health dangers of hookah smoking are much less recognised than those of cigarettes and it is important that only products carrying the appropriate health warnings are sold.

Are there any issues that are prevalent where you are?

LBHF is planning a mini-project to deal with non-compliant nicotine inhaling products (NIPs) – disposable e-cigarettes which are often too big, exceeding the maximum 2ml size (equivalent to approx. 600 ‘puffs’); too strong – up to 60mg/ml (6%) strength rather than the permitted 20mg; and not notified to MHRA. These products appear to have

Winter 2021

Journal of Trading Standards WINTER 2021

been flooding onto the market in recent months and it also appears, anecdotally, that they are becoming popular in schools.

A section on this type of product is being added to our guidance letter and I’ll be involved in visits, initially to specialist vape shops, and any subsequent reporting of offending.

GARETH WALTERS MANAGER, MONMOUTHSHIRE TRADING STANDARDS SERVICE What has been your main area of focus over the past six months?

The last six months have seen some exciting developments and opportunities arise despite the circumstances we continue to battle with.

I am currently working closely with Welsh Government to see how through partnership working we can deliver real change that benefits all. I have worked closely with officials in developing the Animal Welfare Plan for Wales, which identifies key actions required to deliver the Programme for Gov-

“The more we can all work together, share the burden and support each other, the more we will achieve”

www.JournalofTradingStandards.co.uk

“We are a small team trying to tackle a very large problem that only seems to be rising”

ernment. It has enabled Trading Standards Wales to appoint eight animal licensing officers to become recognised experts and available to support all Welsh local authorities.

Are there any issues that are prevalent where you are?

Monmouthshire is an unusual area when compared to its neighbouring local authorities and as a border authority it does bring some interesting challenges, especially during COVID-19. With an older than average population and significant affluence in some areas, scams have always been a concern.

With the increasing drive to become greener and more environmentally friendly this potentially provides the right ingredients for residents to be targeted by criminals – it also presents the opportunity to show Welsh Government the key role the profession can and must play.

What are the obstacles to tackling these issues?

Unfortunately often the biggest obstacle to tackling a lot of these issues is us. Don’t get me wrong: we are cut to the bone and could do so much more with additional resources – but they won’t just come to us.

So the more we can all work together, share the burden and support each other, the more we will achieve. More importantly, that will create the opportunities that will then provide us with the additional resources we need. If we don’t, someone, somewhere will suffer – and that could be someone special to any of us.

KAREN TILLETT TRADING STANDARDS OFFICER, CITY OF LONDON CORPORATION What has been your main area of focus over the past six months?

We are members of a group called Operation Broadway, a partnership with The City of London Police, HMRC, the FCA, the Insolvency Service and the National Fraud Intelligence Bureau, who all work together with the aim of disrupting investment fraud. As part of this initiative I look into ‘virtual squatters’ who claim to be based in the City, and apply to have their websites taken down. I also advise the sometimes vulnerable fraud victims on the best ways to try and recover their money, and how to avoid future scams, making safeguarding referrals as necessary.

Are there any issues that are prevalent where you are?

Our main issues stem from the large number of virtual offices based in the City. Mail forwarding businesses, solicitors and accountants all play host to probably hundreds of thousands of registered offices. We also have many businesses based at serviced offices and co-working spaces. The sheer numbers involved means that it is challenging to be pro-active, so we rely heavily on intelligence from

the public and other agencies to direct us towards problems.

In the last couple of years we have seen that the majority of investment scams revolve around cryptocurrencies, with consumers being persuaded to invest in trading accounts, then being unable to withdraw their perceived ‘profits’. This can then be followed up by the fraudsters offering to help them recover their losses for yet another fee – a ‘Recovery Room’ scam.

What are the obstacles to tackling these issues?

We are a small team trying to tackle a very large problem that only seems to be rising, especially with new ways that fraudsters target potential victims using platforms such as Instagram, Facebook and WhatsApp. One problem we experience is the reluctance of some hosts to take down fraudulent websites, even when supplied with relevant evidence. More engagement and cooperation from website hosts would be helpful, as well as having increased trading standards resources that could be directed towards Operation Broadway.

As always, consumer education is key, with fraudsters becoming more and more sophisticated.

Any additional measures to increase consumer awareness of these scams could prevent many of them from becoming victims in the first place.

| 11

LET’S SQUASH THE

GREENWASH As the push towards Net-Zero gathers pace in the wake of November’s COP26 summit in Glasgow, many businesses are keen to talk about their supposedly environmentally friendly credentials as they seek to attract climate-conscious consumers.

However, CTSI is highlighting the dangers of businesses making exaggerated or false claims about the sustainability of their goods or services, in a practice known as ‘greenwashing’.

Greenwashing is a form of marketing in which a business’s practices are made out to be more environmentally friendly than they actually are. It can come in the form of claims on labelling or in advertising, and can potentially mislead consumers seeking environmentally friendly alternatives.

It is believed that both deliberate and accidental greenwashing is becoming increasingly prevalent. This year, a joint study by the International Consumer Protection Enforcement Network (ICPEN) and the Competition and Markets Authority (CMA) revealed that around 40% of green claims online could be misleading consumers.

CTSI Chief Executive, John Herriman, said: “Greenwashing is one of the new significant challenges for consumer protection, and it will be a growing problem as the Net Zero economy expands. More and more consumers are making sustainable lifestyle choices, and it is important that companies are not allowed to exploit their good intentions by making dishonest claims.

What can trading standards do?

There is no legal definition, but greenwashing occurs when a claim is made that a product or service does more to protect the environment than it actually does. There is legislation to protect consumers and businesses from being misled in relation to green claims which trading standards can enforce, for example the Consumer Protection from Unfair Trading Regulations 2008, or the Business Protection from Misleading Marketing Regulations 2008. Trading standards can also advise businesses to help with compliance and educate consumers on how to avoid misleading green claims.

12 |

“We also want to make sure that companies that conform to the law are supported when they make green claims in good faith. The Net Zero agenda will eventually encompass practically every product, service and organisation in the country, and I cannot overstate its potential magnitude and impact upon consumers.

“The front line of protecting consumers will be delivered by a layering of defences ranging from legislation and regulators through to standards bodies and trading standards services. They are all working to reduce the risks to ensure consumer confidence in a market that we all want to see succeed because it will ultimately stop the damage from products that harm our environment.”

PRODUCT OR SERVICE ‘Green’ claims on label, imagery, or slogans Higher price tag for seller

Businesses

The greenwashed products or services may then be passed on to unwitting businesses, sometimes for resale, taking advantage of the trust of the seller.

The planet

Customers choosing greenwashed products over others that may be more sustainable can actually increase ecological harm

Winter 2021

Who can it affect?

Our planet

One component of a product may be “green” – for example ingredients in a food product – but the packaging and transportation of the ingredients may actually harm the environment, with packaging not being recyclable or the ingredients leaving a large carbon footprint in transit.

Consumers or businesses may choose a greenwashed product or service over another one which would actually be more beneficial for the environment overall.

Consumers Businesses

Businesses wishing to protect the environment can also be misled, for example with claims that waste disposal is “eco-friendly” when it is not. They may also purchase energy-saving technology and can be misled as to potential cost savings or how “green” the technology actually is.

Greener products and services often have a higher price tag. A consumer may be misled by claims that a purchase will meet their personal ethical, health or environmental standards when it in fact does not. Consumers can be misled with imagery, vague or confusing statements, slogans or factual inaccuracies. Consumer detriment can range in severity, from smaller price increases when it comes to food products, to hundreds or thousands of pounds in the case of green energy systems in the home, to greener vehicles and eco-tourism.

When green goes wrong In the past, trading standards has seen misleading claims have serious consequences for consumers and businesses who made purchases to help protect the environment and save money on energy. For example, some were misled and did not realise they no longer owned their roofs after signing up for solar panel installation. There have also been cases where false ‘organic’ labels applied to products have made hundreds of thousands of pounds for unscrupulous traders. The level of profit that can be made from false claims can even attract organised crime groups. As we move towards Net Zero it will be increasingly important to ensure that there is a level playing field within the green economy.

40

%

of firms’ green claims could be misleading according to the CMA co-ordinated ICPEN review www.JournalofTradingStandards.co.uk

50

%

A 2021 study, run by ICPEN and jointly led by the CMA, found misleading tactics such as: » Vague claims and unclear language, including terms such as ‘eco’ or ‘sustainable’, or reference to ‘natural products’ without adequate explanation or evidence of the claims; » Own-brand eco logos and labels not associated with an accredited organisation; » Hiding or omitting certain information, such as a product’s pollution levels, to appear more eco-friendly.

of consumers take green claims “into account when buying products” according to a 2014 European Commision study | 13

The Basics

Concise Guidance

Detailed Information

Need-to-know on trading law

What, where and how you sell

In-depth detailed guides

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Matt Allwright

Matt Allwright

Matt is a journalist and presenter of the BBC’s Watchdog and Rogue Traders

On the brink of climate catastrophe Environmental sustainability requires a rethink of our consumption habits. Does trading standards have a role to play in combatting waste?

Are we enabling exactly the kind of rampant consumerism that we should be trying to make a thing of the past?

Winter 2021

As I’m writing this, COP26 is drawing to a close. Although the last couple of weeks have seen us wrestle with how to approach the future, one thing seems clear: we need to consume less of almost everything. So as guardians of the people doing that consuming, what is our role in this? Are we even, maybe without knowing it, enabling exactly the kind of rampant consumerism that we should be trying to make a thing of the past?

Let me take you back a couple of years. A particularly interesting phase for Watchdog was when it was felt necessary to include a celebrity interview as part of an hour-long show. Ever wanted to know what kind of holiday insurance John Inverdale has? Well tonight we’ll tell you!

The segment didn’t last long.

One of the more illuminating chats was when Anne Robinson asked former Labour spin supremo Alastair Campbell what his consumer gripe was. Curiously, his answer has stuck with me. It was something like: “My consumer gripe is people buying expensive things they don’t need and then complaining about them.” The collective intake of breath nearly popped the studio double glazing out of its frames. Had Cambo punctured, without punctuation, the very reason for our existence as a programme? Anne never really recovered from this moment, and left the series a mere eight years later.

I’ve often thought about what he said. I hope it goes without saying that I think it’s really important to fight to make sure that people are able to use their money to its fullest potential, within a legal and moral framework that ensures trust and confidence. The alternative is unenforced chaos, a wild-west of wide-boys and

dodgepots. And of course it’s not just about money. It’s about being able to believe in a world where fairness prevails and we’re free to make informed decisions about how best to use our resources. So why did Alastair’s words still have the ring of truth?

I think it comes down to the difference between consumer justice and consumerism. There is no mistake about whose side we are on – that of the customer. But we shouldn’t be fooled into thinking the customer is always right, or that they always make good choices. I’m sure we’ve all felt instinctively when a complaint has strayed away from genuinely seeking redress, and into something else, entitlement perhaps, stretching our sympathies to breaking point.

It’s far too easy to buy with a single click now and regret later, and to mistake an injustice for what is actually buyer remorse. We need to save our energies for those cases where we can show clear and substantial damage is being done to people’s lives, taking chunks out of consumer confidence, and where fairness is in the balance. Otherwise we may have a hand in enabling the sort of mindless consumerism that COP26 has made clear we can’t afford any more and, worst of all, we may just have proved Alastair Campbell right. n

| 15

Think Piece

Red flags on greenwashing As the fight against climate change ramps up, trading standards will need to be increasingly on its guard against misleading ‘greenwashing’ claims by business, says Laura Kane Laura Kane CTSI Interim Head of Policy

I am questioning my avocado consumption and thinking: are all those airmiles really worth it?

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Government’s Net Zero carbon strategy sets out policies and proposals for decarbonising all sectors of the UK economy to meet its target by 2050 (see page 38). This has implications for consumers and business, and therefore local authority trading standards services, as the UK navigates a sea of changes in consumer choice. The Government has committed to “work with the grain of consumer choice”, which is positive; however, effective regulation of Net Zero initiatives and products will be required to ensure they are fit for purpose and true in what they say they will do. Consumers and business also need to feel supported and empowered in choosing products and services within the green economy.

Green claims can be complex and confusing to decipher to say the least.

I myself have consulted the Consumer Council website many times to work out which energy supplier was the cheapest.

I’ve also felt the knee-jerk reaction to try and pick greener products, relying only on what I read on the label or website. More recently I have found the CMA’s Green Claims Code for Shoppers really useful. My

mindset has changed and I am starting to shop local as much as I can. I am questioning my avocado consumption and thinking: are all those airmiles really worth it?

This would tend to reflect the current trend within the consumer landscape, in which consumers are becoming more motivated to purchase green products and services. A Deloitte study this year found that 34% of 2,000 adults surveyed look for brands with strong sustainable credentials.

Exploiting good intentions As well as the difficulty navigating legitimate adverts, trading standards professionals over the years, myself included, have seen a wealth of greenrelated criminality which preys upon consumers’ desires to protect the environment and their health, or to save money on energy. From illegitimate charities, scams and copycat websites to solar panel firms taking ownership of roofs and fake organic pistachios bringing €6m (£5.1m) in profit for organised crime, the complexity and confusion and detriment

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Journal of Trading Standards

that can be caused by green claims means that effective regulation is needed to level the playing field in the green economy and help consumers and businesses feel confident in their green choices.

An International Consumer Protection and Enforcement Network (ICPEN) review this year, which the CMA jointly led, found that 40% of claims made online could be misleading. This included vague claims and unclear language including terms such as ‘eco’ or ‘sustainable’, or reference to ‘natural products’ without adequate explanation. Own-brand eco logos and labels were not associated with an accredited organisation. Information was also hidden or omitted in efforts to make products appear more eco-friendly – no doubt causing Regulations 5 and 6 of the Consumer Protection from Unfair Trading Regulations to pop into the head of the trading standards professional reading this.

This raises the question of what can be done about green claims against a backdrop of inadequate resources. We know that investigation of misleading green claims can be complex, timeconsuming and prohibitively expensive

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to investigate, even by the most wellresourced trading standards service.

To reduce the need for such enforcement and to support the UK economy, businesses will need help to comply when making green claims and there have been moves within the consumer landscape to provide some clarity. BSI’s PAS 2060 verifies claims around carbon neutrality. The CMA’s Green Claims Code for business sets out guiding principles, legal explanations and day-to-day examples which businesses can consult when making green claims to consumers or to other businesses.

Sectoral regulators can also produce rules for the utility companies they regulate.

The Advertising Standards Authority (ASA) can take action for misleading green claims which appear in advertising and has already had a number of high profile rulings. A local business will still expect support from its local trading standards service and CTSI is aware from dialogue with our business stakeholders, that businesses are actually missing the presence of trading standards within their communities.

It is clear that trading standards has a role at a local and national level in supporting the Net Zero agenda, which no doubt now features as a key driver within local authority work plans and targets.

There is the risk that trading standards could get overlooked in the process of budget allocation if decision-makers don’t see its importance in reaching Net Zero in a fair and equitable manner.

CTSI is already engaging and will continue to engage with Government to ensure trading standards has a seat at the table in the agenda as the UK Builds Back Better. Demonstrating the relevance of trading standards within this agenda (despite there not being enough resources yet to fully carry out all that is currently and will be required) is a vital part in campaigning for extra resource. CTSI recently published a ‘Squash the Greenwash’ infographic as a sharable resource to help local authorities demonstrate this relevance.

CTSI is looking into the chasm of what is not getting done currently due to the lack of trading standards capacity across the UK and what the risks to consumers and businesses are as a result. We will also be looking at what is coming down the line for trading standards in the green space as we continue to push for additional resources.

We are also keen to put a spotlight on the value for money trading standards already provides as we know that where possible, trading standards services are already operating within this space.

If you or your authority is investigating green claims, or doing any green projects, please get in touch; as with COVID-19related work, we know that authorities will be making innovative use of the resources available and we would very much like to hear about it. n

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Cover Story

By Helen Nugent

FIGHTING THE

GOOD FIGHT

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Winter 2021

Journal of Trading Standards

How can trading standards harness its strengths of adaptability and versatility to survive – and thrive – when it’s under greater pressure than ever before?

Adaptability and versatility have always been among trading standards’ greatest strengths. But it’s not always easy to play to your strengths when under pressure, particularly when resources are stretched thin and demands on those resources are at an all-time high.

While the breadth of expertise in trading standards has never been in question, recent years have seen swingeing cuts to the profession while, at the same time, elected officials have continued to ask more and more of officers across the country. The issue now is: how can trading standards harness its strengths in order to remain effective?

CTSI Chief Executive, John Herriman, says: “From my experience of seeing trading standards at work, I think it is one of the most versatile and adaptable professions that I’ve ever seen. It has the ability to react and respond both to specific emergency situations and national incidents but also to tune into the needs of local communities and local governments. And all of that is an incredible quality that trading standards possesses.”

He continues: “The challenge, however, is that when you’re adaptable like that, and you’re very responsive to tuning into specific needs which can be

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very wide-ranging, there is always a risk of losing your professional identity as a result. That’s because the professional boundaries become blurred. I think our challenge is to remain adaptable, agile and responsive whilst being clear about what those professional boundaries are. In some areas we do that very well but in other areas we do that less well. Our challenge is therefore to be very clear about what those professional boundaries are, where we add value, and where we’re absolutely relevant in how we provide those services.”

While the public may not be fully aware of the broad range of work undertaken by trading standards, its mission remains the same – to protect individuals and legitimate businesses.

These duties cut across pretty much every area of public life, including the safety of the food chain, product safety, consumer protection from crime, and mass-marketing scams. The holistic nature of trading standards is vital but perhaps the profession itself hasn’t been very good at singing its own praises – or educating people about what it actually does and how well it does it.

“I think the public perception is that consumers are protected in every aspect of what they do, or every purchase that

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Cover Story

By Helen Nugent

they make,” says Herriman. “And that isn’t necessarily the case because we don’t have the capacity to be able to do all of that. I have a working analogy for trading standards which is that we’re a bit like the security services, working behind the scenes most of the time so the public feel protected. But the security services are also protecting against those major, one-off incidents and the public might not even be aware that something has been avoided.

“WE’RE A BIT LIKE THE SECURITY SERVICES, WORKING BEHIND THE SCENES SO THE PUBLIC FEEL PROTECTED” “Trading standards plays a very similar function in terms of working behind the scenes, so I think there’s a piece of work that we need to do to raise awareness of where the risks do exist. But we’ve got to do that in a responsible way so it’s not scaremongering.”

Herriman believes that the trading standards profession is driven by an overriding sense of social purpose. This has been especially evident during the past couple of years when officers have gone above and beyond to protect the public during the global pandemic.

According to a recent report from the Association of Chief Trading Standards Officers (ACTSO), demand for trading standards services spiralled during COVID-19.

In ACTSO’s third annual review, ‘The Impacts and Outcomes of Local Trading Standards Services in England and Wales’, figures for 2020/21 showed that, despite the temporary suspension of some non-COVID-19 enforcement activity, demand on the service soared by 20%, and the number of supported scam victims rose by 26%. In addition, trading standards helped local authorities by carrying out more than 1.2 million COVID-secure compliance checks.

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20%

surge in demand for trading standards services during COVID-19 pandemic

26%

increase in support for scam victims

£588m in consumer detriment prevented in 2020/21

43m

unsafe or noncompliant products and PPE removed from the market (Source: ACTSO)

Responding to change Steve Ruddy, Chair of ACTSO, says that trading standards services are doing very different things from 20, or 10, or even five years ago.

“As things move on the issues change and the way we need to respond changes.

Trading standards has demonstrated that again and again, most recently with changes over trading arrangements related to Brexit and over the last couple of years with COVID-19. There are huge issues of sustainability and capacity leading to huge pressures at a time when the expectations on trading standards have increased but the risks that society face, the legislation that we are expected to deal with and the harms that we’re addressing haven’t decreased.”

He adds: “So there is a huge strain on the system and that does mean that there is a question mark over the long-term sustainability of the system. As trading

standards, we do have some benefits in the way that we are able to organise ourselves so that it’s not just up to individual local authorities to respond to threats; there is a collective approach through coordination and regional working.”

Ruddy agrees with Herriman that telling people about the vital work done by trading standards is important.

“If we’re not shouting about the value we are adding, the impact we’re having, the way we’re protecting businesses and individuals, then others aren’t going to be shouting about the value of trading standards. We need to be doing that. I

“AS THINGS MOVE ON THE ISSUES CHANGE AND THE WAY WE NEED TO RESPOND CHANGES. TRADING STANDARDS HAS DEMONSTRATED THAT AGAIN AND AGAIN” Winter 2021

Journal of Trading Standards

Meanwhile, the National Trading Standards (NTS) 2021 Consumer Harm Report stated that, in 2020/21, NTS secured prison sentences totalling 57 years and 10 months, and convicted 30 people of offences.

Furthermore, NTS reported that as criminals have adapted and finessed their activities in recent years, and consumer habits have changed, in particular in relation to online shopping and the frequency of home deliveries, so trading standards teams have adapted their own techniques in order to meet a plethora of new challenges. That work is ongoing, with continuing explorations of ways to disrupt criminals and safeguard consumers.

think that, sometimes in the past, we have been too modest and too timid about highlighting the impact that we’re having and the value that we create, and the fact that the work that we do supports a whole range of different government initiatives, government priorities and societal priorities.”

Ruddy says that trading standards services are tackling key issues facing the country and very successful at doing so.

They are also doing some things better than was the case in the past, including dealing with doorstep crime and other high-risk issues. But “the breadth and range of activities that we deal with also makes it difficult sometimes to articulate the broad impact and the broad value of trading standards”.

‘Protecting the Public and Supporting Business During the Pandemic’, issued by ACTSO as part of its annual

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review, revealed that, in 2020/21, local trading standards services prevented more than £588m of detriment against an approximate revenue budget of £104m. During the same period, nearly 43 million unsafe or non-compliant products and PPE were seized or removed from the market following interventions by trading standards.

The report also detailed that trading standards dealt with almost 98,000 complaints about non-COVID-secure business settings or business closure requirements.

“THE BREADTH AND RANGE OF ACTIVITIES THAT WE DEAL WITH MAKES IT DIFFICULT TO ARTICULATE THE BROAD IMPACT AND THE VALUE OF TRADING STANDARDS”

Reaching out North of the border, the Society of Chief Officers of Trading Standards in Scotland (SCOTSS) is working hard to engage more with affiliated organisations and with elected officials, chief executives and the Scottish Government. Graeme Paton, Chair of SCOTSS, hopes that they will recognise the valuable work being done by trading standards.

He says: “Trading standards has always had to adapt and have a bit of versatility because of the very nature of our job. The regularity with which the regulation we enforce changes means that we have got to adapt to those changes in order to be able to do the work. An example which really took us out of our comfort zone was COVID-19. When the pandemic came along and the regulations came in, the restrictions came in, as did the prohibitions on businesses operating, and we had very little time to adapt to that. I can only speak for Scotland but trading standards was asked, ‘can you bring something to this party?’ And we brought something to that party.”

The work that has been done during COVID-19 included collaborating with colleagues in other organisations, responding to the needs of employers who needed to implement new rules, and visiting businesses to ensure that,

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Cover Story

By Helen Nugent

“IT’S ONLY WHERE ELECTED MEMBERS REALISE THE STRENGTH AND THE CAPABILITY OF WHAT TRADING STANDARDS CAN BRING TO THE TABLE THAT WE GET THE RECOGNITION FOR IT” where they could trade, they could trade safely. However, Paton says that while it’s all very well being adaptive and versatile, the profession has to make the point to the powers that be that when demands are made, trading standards steps up and delivers. “And it’s only where elected members realise the strength and the capability of what trading standards can bring to the table that we get the recognition for it.”

Of course, all this is against a backdrop of scaled-back investment in trading standards. In 2002, Scottish trading standards employed more than 500 staff across the 32 authorities. Now it employs half that number.

Paton says: “If you look at our demographic, almost 60% of our strength is over 50 and will retire in the next few years. Indeed, since the last SCOTSS survey was carried out in July, three trading standards managers have retired and two more have signalled that they will leave next year. And the problem is that only 4% of our strength is under 30. We have a cliff edge and it means there could be very few left of us in five to 10 years’ time if that demographic plays out.

“But there is always optimism when you’re as professional an outfit as trading standards. We will continue to fight the good fight and do the work as best we can with the resources we have.”

Over in Northern Ireland, the service has also had to adapt and evolve. Damien

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Doherty, Chief Inspector for the Northern Ireland Trading Standards Service, cites the example of tackling scams.

“When we started looking at scams about 10 years ago we had to adapt our traditional way of working from enforcement and move towards more of a consumer protection and consumer advice, empowerment and advocacy role to ensure consumers knew about the harms of scams and could equip themselves and obtain the tools to avoid being a victim.

“WE WILL CONTINUE TO FIGHT THE GOOD FIGHT AND DO THE WORK AS BEST WE CAN WITH THE RESOURCES WE HAVE”

“In Northern Ireland, Brexit has impacted us quite a bit. We’ve had to adapt considerably and will continue to have to adapt to changing legislation and the potential for divergence between Northern Ireland and Britain and where that will leave us. There already is divergence in those areas of work covered by the Northern Ireland Protocol such as legal metrology. And because consumer protection is devolved in Northern Ireland, we could also see divergence between ourselves and Britain on everyday consumer protection law.”

Doherty says the service has also had to get to grips with increased workloads, and has had to model all the impacts of EU Exit.

Unsurprisingly, this took up a considerable amount of time, and necessitated the establishment of a new team.

Winter 2021

“I AM INCREDIBLY OPTIMISTIC AND VERY POSITIVE. WE’VE MANAGED TO OVERCOME OUR DIFFICULTIES AND CHALLENGES AND WE’VE DONE THIS WITH HARD WORK” A number of other new teams have also been set up to deal with the various implications of EU Exit, and additional staff have been employed to deal with the work, including trainee trading standards officers who must be trained while the service deals with the ongoing demands of COVID-19 and working from home.

While none of this has been easy, in Northern Ireland they have taken the service from 40 to more than 60 staff, and are hoping to take it closer to 70.

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Recruiting the extra employees has involved drafting a significant business case and putting it in front of senior civil servants in order to make the case that trading standards is having to deal with a larger workload, not least because of the Northern Ireland Protocol.

“Any strong, effective economy is always underpinned by effective regulation, something that’s probably not been considered or thought about for quite some time and has been ignored, particularly by certain governments,” says Doherty. “We are an organisation that politicians and Government turn to when things go wrong.”

But does Doherty think that, as it moves forward, trading standards can effectively harness and build on its various existing strengths?

“I am incredibly optimistic and very positive. We’ve managed to overcome our difficulties and our challenges and we’ve done this with hard work. There are additional remits put onto trading standards all the time and we just have to get on with it. We’ve always had a can-do attitude because, fundamentally, it’s been about protecting consumers. We have to ensure that we continue to do that but we also have to protect ourselves as a profession. We have to tell Government and the decision-makers why our role is so important. And certainly CTSI has been taking steps to do that.”

Flying the flag Lord (Jamie) Lindsay, who was appointed President of CTSI in April 2021, is well placed to assess the strengths – and the future – of the profession. He also serves as Chairman of UKAS, the UK’s National Accreditation Body, and has a number of other senior roles at various leading organisations. A member of the House of Lords, he was Parliamentary Under

“NOWHERE IS AWARENESS MORE NEEDED THAN AT CENTRAL GOVERNMENT LEVEL, AT DEVOLVED GOVERNMENT LEVEL, AND AT LOCAL AUTHORITY LEVEL” Secretary of State for Scotland in John Major’s government.

He says: “Amongst the trading standards profession there is a natural strength when it comes to looking at making the most of the resources that are available to them by being innovative.

In many ways, I think that trading standards is an unsung profession. The people out there on the front line are unsung heroes.

“I think we need much greater awareness of just what a critical role they play, and nowhere is that awareness more needed than at central government level, at devolved government level, and at local authority level. With a greater awareness of just what a key role they’re playing, there comes the chance of greater resources and greater support.”

Despite the challenges that lie ahead, Lord Lindsay is confident that trading standards will do its utmost to survive.

“On the one hand I do feel optimistic as they play such a critical role but because their role is underappreciated and not sufficiently understood, there is a danger that they are being allowed to wither on the vine through neglect by third parties.

“But I cannot contemplate a future where they are irrelevant. We have to move on from a situation where trading standards’ critical role is not properly understood to a situation where there is a proper, broad understanding of just what an important part trading standards plays.” n

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CPIN

By Richard Young

Speaking out for consumers By becoming involved in the Consumer Public Interest Network of representatives, TSOs can gain a seat at the table when new standards are being developed When it was founded in 1951, the Consumer Public Interest Network (CPIN) was a women-only organisation established to keep an eye on the safety of domestic appliances. As it celebrates its 70th anniversary this year, much has changed – the organisation allows men to join its network now, for one thing – yet its core remit of representing the consumer voice in the development of standards remains the same.

CPIN has expanded beyond domestic appliances to address five key areas. In addition to its focus on consumer safety, it considers consumer vulnerability as a factor in making goods and services fair and inclusive; it advocates for improved

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digital services that keep personal data secure and protect consumers in their online activities; it works to keep interactive services such as adventure holidays safe; and it encourages businesses to follow sustainable practices that help consumers make informed green choices.

This broad spectrum of activities is made possible by CPIN’s community of representatives who sit in on meetings when new standards are being developed. Although it is an independent organisation, CPIN is supported by the British Standards Institute (BSI), which serves as a secretariat. CPIN is also part of the Consumer Forum – as Helen Gray,

Consumer Engagement Executive at BSI, explains: “The Consumer Forum is a council of organisations that meet twice a year to discuss issues and emerging areas where we know consumer stakeholders need to get involved in standardisation.

“In terms of how CPIN works as a network, it’s a very collaborative approach. We have representatives who sit on various committees or standards. This year, we’ve started developing support groups so if they’re working on particularly high-profile or intensive projects, they have people to bounce ideas off and help spread some of the workload. We want to make it as collaborative as possible.”

According to CPIN Chair, Julie Hunter, “BSI and other national standards bodies have an obligation to include the consumer stakeholder voice wherever it’s relevant. Often we could be outnumbered

Winter 2021

Journal of Trading Standards

Symposium,” she says. “It was really quite interesting for me to be able to become involved in standards, not from an enforcement perspective, but to represent the collective interest of consumers from a position of knowledge and having an understanding of the background.

“I’ve got a particular interest in safety standards. I wanted to become more involved and influence their development; CPIN was an ideal route to do that.”

Emma Hope, Acting Principal Trading Standards Officer at Hertfordshire County Council, also serves as a CPIN representative. “It’s another way to protect consumers,” she says. “It allows us to understand and have influence over standards. We’re very familiar with the

“We get exposed to a lot of intelligence when investigating non-compliance, which gives us a unique understanding of unsafe products” – there can be a bit of an imbalance when you’re on a committee and there’s one consumer representative, and lots of other stakeholders from business there. So it’s really important to get that voice across strongly to make sure key consumer issues are addressed.”

CPIN’s interests dovetail neatly with those of trading standards, and trading standards officers make ideal CPIN representatives. They are able to combine a theoretical expertise in consumer protection legislation with practical, up-to-date knowledge of real-world examples of consumer detriment, as well as their own experiences from their personal lives.

Michelle McKenna, Senior Trading Standards Officer at North Lanarkshire Council, has been one of CPIN’s representatives for the past three years.

“I first became aware of CPIN at CTSI

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regulations, and it helps us to develop the educational side as well about how standards are made.

“As trading standards officers, we are privy to what are the high priority areas.

We get exposed to a lot of intelligence when investigating non-compliance, which gives us a unique understanding of unsafe products. It also gives us a unique opportunity to understand what the average consumer behaves like.”

Evidence of harm “We need to be able to go into committees with evidence of consumer harm to make sure risks are mitigated,” Hunter says.

“It’s really important that we identify real consumer needs and experiences.

The sorts of problems that people are having in their everyday lives need to be addressed. Industry want their products to be safe but sometimes they’re looking

at it from a different perspective and they may not know about all of the problems consumers are having.”

Both McKenna and Hope have brought their experiences of parenthood into the standards development process. “I have two children so obviously, anything childrelated has always been a passion, says Hope. “Magnetic toys are an issue and something that we’re looking at.”

McKenna herself has been instrumental in bringing the dangers of button batteries to people’s attention.

“There’s been a real increase in the number of incidents where children swallow button or coin batteries,” she says. “Once they do that they can get stuck, and can cause burns. In the last few years this has led to loss of life or life-changing injuries for some children.

Within the toy safety regulations and standards, button and coin batteries had to be secured with a screw. But for other products, like bathroom scales and novelty cards, that requirement wasn’t there. So there was a kind of gap.”

To fill that gap, following the input of McKenna and others, BSI created a Publicly Available Specification (PAS) – a form of fast-tracked standardisation document. “The PAS is there to improve the safety of these products and increase awareness in terms of the risks and hazards,” says McKenna.

“A lot of consideration had gone into warnings on the packaging and on the battery, but at the point when a child actually swallows a button battery, the packaging will be thrown away. The only thing that you’re likely to have is the product itself with the missing battery. It’s important that a parent realises straight away that they need to take urgent action.

So the PAS was about changing the messaging and putting warning labels on products, and in the retail environment having posters at the point of sale so people understood they are a hazard to children.”

McKenna also raises the issue of magnetic toys – in this case, magnetic beads, which have become must-have items in many Christmas stockings.

“These magnets are really, really

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CPIN

By Richard Young

if a child’s toy car goes underneath, they might reach under there to get it out.

We campaigned to get a child-sized test finger included in the testing so that it was also safe for children, even though they were not seen as the intended users of that appliance.

strong,” she points out. “And they look a bit like Tic Tacs, or the smaller ones look like hundreds and thousands. So if a child thinks they’re a sweet and swallows them, they get joined together in their digestive system and break through the intestinal walls. There have been a couple of children that have died and several that have been injured.”

New complexity The importance of looking out for consumers has never been greater, particularly in this age of new routes to market and new ways of buying goods and services, Hunter believes. “I think there’s an assumption sometimes that everything you find for sale is safe,” she says. “But the problem we have now is complex supply chains. One thing that we’re really concerned about is online marketplaces.

More people are buying from them and they don’t know what regulations have been followed, what quality standards have been met for many of these products.

“I don’t think consumers are necessarily aware; they see something and they think, ‘Well, that’s a charger for my phone’, and they just buy it – and they just assume it’s going to meet the safety standards, and it doesn’t.”

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“A lot of people have been forced online when they might not have been before, which might mean they’re a bit less savvy when making purchases” It isn’t just consumers who are sometimes in the dark; often businesses haven’t really considered how their products are likely to be used. “Quite often, manufacturers or retailers are just looking at intended use,” says Hunter.

“For example, with laser pointers. When they first came out, they were just meant to be used for pointing at a blackboard.

But actually, kids are going to pick them up and shine them into each other’s eyes.

“On domestic appliances, the testing labs used to only have to use an adultsized test finger to make sure that it couldn’t access live parts, for example around the back of a fridge, because the manufacturers said the intended user was an adult. Of course, fridges are kept in kitchens, which are family rooms, and

Digital dilemmas “The other thing we’re really focusing on at the moment is digital services. During the pandemic, a lot of people have been forced online when they might not have been before, which might mean they’re a bit less savvy when making purchases.

If they haven’t traditionally done things online, they might not be taking as much care or be as aware of the risks. So we’re looking at things like vulnerability; I’ve just finished work on an international standard for vulnerability and inclusive service. We’re looking at things like algorithms and ‘dark patterns’, and how your choices online could be limited by the algorithms at work behind the scenes.

“We have also been looking at things like adventure tourism. We worked on a British standard which became an international standard, because this is all about people travelling. It makes sure that trips are designed and planned safely. It’s about the knowledge and competence of the leaders and what to do if there’s an emergency situation. That has been quite effective as well.”

To further its reach and maintain its effectiveness, Hunter says, CPIN is always on the lookout for new recruits. “We have about 60-plus volunteers, and our aim is to diversify our network,” she says. “We have been very lucky lately to get some people on board from trading standards.

If their employer will let them take time out to work on these standards, that’s really beneficial for us.”

The benefits of joining CPIN go both ways, McKenna says. “In my day job as a trading standards officer, it gives me contacts with product safety experts and charities that are involved with product safety, and I’m linking in with them a lot more and helping them out as well. That’s all come from my involvement with CPIN.” n

Winter 2021

Could you speak up for Consumers?

Why not help us build a safer, fairer and better world where standards help business improve outcomes for consumers?

The Consumer and Public Interest Network (CPIN) is an organisation of trained consumer volunteers who represent consumers in the development of British Standards. CPIN ensure that standards address real problems faced by real people.

We believe that all consumers have a right to safe and accessible goods and services, clear information, fair treatment, effective systems of redress and a healthy environment so it’s vital that consumers are at the heart of standards development.

CPIN representatives speak up for consumers in UK standards committees to: • highlight key consumer issues • make sure that real problems are addressed • minimize the risk of consumer harm • make a positive difference to consumers’ lives

CPIN CASE STUDY: PAS 7055:2021 Button and coin batteries “Consumers expect that if a product is dangerous, there will be a warning attached. In practice, many button batteries, or products that contain them, have come with inadequate or non-existent safety warnings. We made sure the standard requires the use of a permanent and recognisable warning symbol on relevant consumer products, close to the compartment that contains the button or coin batteries.”

Michelle McKenna, Senior TSO at North Lanarkshire Council CPIN member and representative to the PAS 7550:2021

Could you make a difference? Would you like to join us in the CPIN? Why not email us at consumer@bsigroup.com to find out more? Full training, expenses and support will be given.

bsigroup.com/consumers

Research

Interview by Richard Young

Theory into

practice Professor Kathy Hamilton discusses how vulnerability can affect everybody at one time or another, and how trading standards professionals and academics have much to learn from one another when it comes to making a difference in people’s lives

Professor Kathy Hamilton is a member of the Department of Marketing at the University of Strathclyde. As co-author of the 2016 publication Consumer Vulnerability: Conditions, Contexts and Characteristics, she literally wrote the book on consumer vulnerability and her research examines, among other things, the relationships between globalised consumerism and social exclusion.

Could we start with an overview of what your work deals with?

My broad area of interest is consumer research, specifically Consumer Culture Theory (CCT) and Transformative Consumer Research (TCR). They’re both sub-disciplines within that broader area.

I’ll start with TCR, because that’s perhaps most relevant to our conversation. The key word is ‘transformative’. This is research that has some kind of transformative benefit for the consumers who are participating in the study. It may be a benefit in terms of consumer wellbeing, welfare or quality

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of life. It shows that academic research within a marketing department can have a broader scope than just having a managerial implication or a managerial benefit. So it’s not research that’s intended to have a commercial benefit in terms of helping organisations sell more products or helping businesses with their brand. It’s something that will have a benefit for the consumer.

TCR is focused on social problems of some kind. It could be about food access, sustainability, gender issues, or health-related issues for example.

My interest in consumer vulnerability dovetails nicely within that arena of work that has a social impact.

CCT tends to be a bit more theoretical.

It’s about understanding consumption phenomenon within the cultural context of globalised consumer culture. It recognises that consumption is embedded within the processes of globalisation within market capitalism and thinks about how those broader systems impact on consumers,

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institutions and society at large. CCT recognises that consumption is about much more than just the moment of purchase, and that there are multiple ways in which a consumer can acquire their goods and services. So it might be a purchase, but it also might be sharing, or renting for example.

It also extends to the whole consumption cycle and really broadens the scope of topics that might be considered under consumer research, and takes a broader perspective. It recognises the complexity and diversity of consumers and moves away from big classifications, and recognises that each individual is impacted by the global consumer culture that we live in.

How does consumer vulnerability extend beyond ‘big classifications’?

One of the most important things is moving beyond thinking about consumer vulnerability in broadly demographic terms. Very often ‘vulnerable’ is a label that’s given to certain demographic

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groups of consumers. Individuals of pensionable age might be one of those groups. Yet that doesn’t match reality, because the research tells us that individuals of pensionable age can live very active, multidimensional, fulfilling lives. The problem with these demographic classifications is that they generalise, and they generalise to an extent that it no longer becomes useful.

One of the main themes of a lot of the different conversations and research projects that I’ve been involved in over the years is a shift away from this demographic approach to vulnerability, and recognising that consumer vulnerability can be experienced by everyone at various points in their lives.

It can be felt particularly during times of transition, whether that be a job loss or a period of ill health, or grief.

Something else that’s worth mentioning is language. Within my own work over the years, there’s been a definite shift away from speaking about

“The problem with these demographic classifications is that they generalise, and they generalise to an extent that it no longer becomes useful” ‘vulnerable consumers’ to speaking about ‘consumer vulnerability’. There are probably two main reasons for that.

The first is that if we say ‘vulnerable consumers’, that can create an impression that somehow there’s a certain blame or responsibility on the consumer, and they are vulnerable because of their own actions. The second reason is this idea of permanence; if you say that somebody is a vulnerable consumer, it gives an impression of a fixed state that they are stuck in, when again, vulnerability can be very transitory.

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Research

Interview by Richard Young

Vulnerability can’t be solved from the individual perspective alone – it’s due to bigger market issues. And it’s due to market failure in some cases.

What role do businesses have to play in identifying and addressing consumer vulnerability?

I think they have a big role. This is something I’ve thought about quite a lot recently. For the past 20 months, I’ve had an ongoing problem with my electricity service provider, to the extent that I have a file on my computer with all my correspondence, and I take a note every time I’ve had a conversation with them. It has been quite stressful and challenging for me, even as somebody who has a fairly good awareness of consumer rights, to deal with this organisation. And it made me think about how it must be even more difficult for consumers who don’t have that background and who are vulnerable in some way.

“Vulnerability can’t be solved from the individual perspective alone – it’s due to kind of bigger market issues. And it’s due to market failure in some cases” One of the definitions that you sometimes see of consumer vulnerability is the sense of powerlessness. As an individual consumer, you have to make a really significant effort to get your voice heard sometimes. There is a disparity in power between a business, whatever it may be, and the consumer, which can often create instances of vulnerability.

If you were to read a company’s policy, they’re probably saying they’re doing a lot of the right things on consumer vulnerability. But there’s a big difference between what they say they’re going to

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do and how that’s actually implemented within the organisation, especially when you’re talking about these massive organisations that have thousands of employees. Often there are good intentions – but they need to be put into practice.

You’ve spoken about individual circumstances and transitional phases that can create vulnerability.

But what about more long-term factors like poverty, or social exclusion, or racial discrimination in certain markets and situations?

They have a big role. My PhD looked at low-income families and how they coped within consumer culture. One of the things that came out of that research is that poverty is much more than just an economic condition; it is a socio-cultural condition as well.

I did interviews with families that were living on very low incomes. They felt a pressure to keep up with societal norms of consumption, which has an impact on their choices. For example, quite a few of the families I spoke to told me that they really diverted their attention to visible things. So it was important that their children had the right brand names, the

right trainers, because they felt they were going to be judged on them and they didn’t want their children to stand out from their peers. So in their budgeting decisions, that’s where the money was allocated, because that’s something people can see. But what people can’t see is whether or not you heat your home.

They would sit at home with multiple jumpers on and blankets around them because nobody can see that, and nobody can judge you for that. They would skimp on the food they were eating because again, nobody knows what you’re eating for your dinner.

When you think of [Maslow’s] traditional theory, it would be that we have this hierarchy of needs – we meet our basic needs before we move up to our social needs. But for many of these people, there was a switch going on there.

It was all about fitting in, it was about stigma and it was about being included.

What impact has COVID-19 had on consumer vulnerability?

It’s definitely heightened particular forms of vulnerability that were there before. Obvious examples of that might be things like food poverty, and the huge

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“Vulnerability can be felt particularly during times of transition, whether that might be a job loss or a period of ill health, or grief”

increase in demand for food banks. It’s also brought loneliness to the fore a lot more. People don’t go to the marketplace for purely functional reasons. They go there for social reasons too, and when all the normal spaces that you interact in are shut down, it really heightens the experience of loneliness, which in itself can be a form of consumer vulnerability.

Everyone has experienced it, but I don’t think everyone has experienced it in the same way. Certainly, most people have experienced glimpses of vulnerability but it’s a very different experience to be stuck in a comfortable home, with a garden and everything you need around you, versus being stuck somewhere small, with no outdoor space, and not in the state of repair that you would want it to be.

wanted to think about what role public service spaces have in consumers’ lives and how they could be empowering and inclusive for consumers who are experiencing vulnerability.

The project is funded by the Leverhulme Trust and we have been working with a non-profit organisation in a deprived part of Glasgow. They have a library, a museum, art space and community space. And they have a very strong ethos of delivering services that are for different groups of people who are experiencing vulnerability.

The project started in April 2020, just after we went into lockdown. The whole project is geared around space, but we couldn’t access the space for such a long time. In itself that was interesting, because it brought to light even more the importance of that space within the lives of the local community.

When we spoke to people, they talked about this space in very positive ways.

The words they use are ‘nurturing’, ‘inclusive’, ‘caring’, ‘welcoming’. One of the things that has come out of this is the importance of having a physical space that is cared for, because in turn that makes the people who go there feel like they are cared for.

Could you tell us about your current work on shared public spaces?

This is part of a Transformative Service Research (TSR) project. TSR is about understanding how services can have an impact on consumer wellbeing.

Traditionally Service Research might focus on things like firm profitability, or customer loyalty. Our interest is much more on consumers themselves. We

How can trading standards benefit from, or help with, your research?

I feel that one of the things that’s missing is having joined-up conversations where we can all speak together. We want our work to have a social impact, and to do that we academics need to partner with people like trading standards, regulators, third-sector organisations and people working in policy.

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A few years ago, we did some work across the UK, the US and France, as part of a bigger group. We did interviews with people in consumer organisations and charities at a practical level. And we found that there are certain barriers to these collaborations. Trying to break down those barriers so that everyone can have conversations is really important.

One of our key pieces of advice has been to move away from the demographic approach to vulnerability, and it’s really nice when you see publications come out from regulators who have approached vulnerability a bit more broadly than in the past. So I do think that that has filtered through quite well. But I feel that there are more opportunities for interaction, and that that’s the key, because academics don’t want their work to be sitting there and not being used.

One of the things I’m working on with some colleagues at the moment is whether or not theory has any place in practice. When we’re publishing work in academic journals, for example, that has to be quite theory-heavy. But is that useful for non-academics? Do they see any value in it? Can it help them solve some of these practical problems around vulnerability, or whatever the social problem may be?

If people who read this have any thoughts on that, it would be great if they could contact me. n

Further information

For trading standards professionals who wish to share ideas about consumer vulnerability, Professor Hamilton can be contacted at kathy.hamilton@strath.ac.uk CTSI’s Business Companion resource ‘Consumer vulnerability: a guide to identifying consumers who may be vulnerable’ is available at www.businesscompanion.info/ focus/consumer-vulnerability

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Think Piece

We must make the case for trading standards In the face of increasing consumer detriment and declining budgets, trading standards is more important than ever before.

But how can it do more to convince society of its worth?

John Herriman Chief Executive, CTSI

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Stepping into the world of trading standards since joining CTSI in April has been the most wonderful experience, one where I’ve felt the strong social purpose to protect consumers that drives everyone I’ve met either within or connected with the profession. It’s what drew me to CTSI and it has very quickly become my driving force. There are few professions with a stronger purpose.

What I have also seen, however, is that whilst the role of trading standards has never been more important, it has never been more difficult to carry out that role.

It therefore sometimes feels like there is a complete disconnect between what we do

and the importance that others place on it.

There are many reasons that could explain this. Changes in legislation from more than a decade ago that spun off responsibilities for consumer protection; changes in the way trading standards is able to operate; and continued budget cuts in local government leading to 50 percent reduction in trading standards capacity, have all been critical factors that have meant the profession’s role has become more constrained. I’m sure some of these changes were brought about by well intentioned attempts to improve protections for consumers. However, the net result has been – and consecutive

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“We must demonstrate our relevance in a rapidly changing context” veneer is definitely starting to wear off as we see more and more news articles about faulty or illegal products, companies seeking to exploit the green agenda or a whole other range of consumer issues.

Finding the balance Our problem as a profession is not that we are not in demand; everyone calls for us when the need arises, as the recent ACTSO Impacts and Outcomes survey shows. But we must demonstrate our relevance in a rapidly changing context. And in this context, the only two constants appear to surveys prove this – a steady rise in be increasing consumer detriment and consumer detriment. As trading standards’ declining funding for trading standards ability to protect consumers has declined services. What this also means is that we have seen a steady increase in this whilst new structures have been created detriment, and whilst we may not have the over the past decade, and they are doing a unequivocal evidence to prove that, I don’t sterling job in many areas, they have not think that is any coincidence at all.

If this is the case the question is therefore: stopped the increase in detriment.

I view this world as an eco-system why has the profession not been able to make a better case for the work that it does, both in with multiple different players across the public, not-for-profit and private sectors the day-to-day activities of frontline trading operating at different levels and layers, standards as well as when we are asked to support in the event of a national emergency from front-line local authority services and national trading standards structures, like the COVID-19 pandemic? through to regulators like the CMA and Trading standards is absolutely relied consumer organisations and businesses on when the proverbial hits the fan. Most working to minimise risks to consumers. people outside the profession I speak to also think far more is happening behind the The problem is that this eco-system is not scenes to protect consumers than they might in balance, as we said in the CTSI response to the long-awaited Command Paper. To really like to be aware of. So people think find the balance, changes can be made to the protections are in place. However, that

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regulators’ powers but trading standards also needs the capacity to be able to fulfil its function properly – something that even Business Member Groups like the BRC have said in relation to there no longer being a level playing field.

To stay relevant we must highlight the critical gaps in local trading standards services, as well as the gaps in the wider eco-system. We must also link this to the ever-increasing consumer detriment so we can hold Government and others to account. We have lost many of the mechanisms by which this could be measured in near real time but the evidence is out there and it helps us to make our case.

We also need to think more broadly than just protecting consumers. We need to make the explicit link between confident consumers and a vibrant economy, and how without that there will be an opportunity lost to the UK economy if trading standards is not invested in properly. This links the work of trading standards to the Government agenda of levelling up, which will in a large part be dependent on the success of SMEs that we know can benefit from our work.

We also need to continue to tune into local agendas in councils, something we are good at as the pandemic once again proved, showing how we can support the delivery of their priorities.

Trading standards as a profession sits at the heart of so many of these issues.

We must show how, as a profession, we can help tackle them for what are relatively modest sums, the investment of which would provide a much greater return both in terms of reducing consumer harm as well as supporting local economic recovery. That’s our relevance as a profession. n

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Enterprise Act enforcement By Iain Bailey

The Enterprise Act: A comedy of errors?

When Kingston Council Trading Standards brought an Enterprise Act Order against a notorious rogue trader, little did they know that they were about to embark on a tangled and complex drama worthy of Shakespeare In July 2017, James Slater was trading as Response Roofing. He had a rather long history of fraud offences and was well known to trading standards across the South East of England, with 97 complaints against him received by the Royal Borough of Kingston Council between 1998 and 2017. He cold-called residents, usually elderly and retired individuals, and offered to do work on their roof or guttering.

The common theme of taking money up-front and either not doing any work, not finishing work or escalating work from a small job to a much larger one, ran throughout all of the complaints.

His victims reported having been left with roof problems and further damage due to rain ingress caused by unfinished or poor work.

In cases where his customers were offered refunds, these were not usually paid as promised. Continuing complaints indicated alleged behaviour causing consumer detriment, namely that Slater had committed breaches of the Consumer Contracts Regulations 2013 (CCRs), by failing to reimburse monies owed; the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), by engaging in unfair commercial practices; and the Supply of Goods and Services Act 1982, by taking too long to carry out work.

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Measure for Measure Having reviewed Slater’s history and the type of complaints being received, we noted that consumers tended to complain to Citizens Advice only after a period of time had passed, having been strung along with promises of remedial work or refunds which then did not happen.

This, along with necessary subsequent repairs done by other traders, meant that evidence of the poor quality of workmanship was often not available.

Timely expert examination was rarely possible and expensive to fund, and the previous Court penalties awarded for similar criminal prosecutions were usually low fines.

Previous criminal prosecutions appeared not to be a deterrent. A decision was made to start civil Enterprise Act action against Slater following a previous Office of Fair Trading action that had resulted in his only custodial sentence for consumer protection offences.

We started formal engagement under the Enterprise Act on 20 March 2017.

This was done by way of an extended engagement over six months. Meetings were held with Slater where matters of concern were discussed and action plans to improve trading practices and paperwork were put forward.

On 26 July 2017, Slater gave a signed voluntary assurance in relation to his trading practices under the Enterprise Act. During this lengthy engagement process we received only two new complaints.

Slater requested continuing meetings after the conclusion of the engagement but failed to attend the next scheduled meeting. Between July 2017, when Slater gave his signed assurance to improve his trading practices, and April 2018, we received a further 15 complaints involving consumer detriment of approximately £43,000 (this included four unsatisfied County Court Judgements). After our engagements stopped, Slater’s behaviour appeared to have become worse. He had also failed to address the historical consumer complaints that resulted in the Enterprise Act engagement commencing.

A draft report was submitted to instigate formal action in April 2018. Our legal service provider advised that given the number of continued complaints, we could proceed straight to an Enforcement Order

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“Slater had a history of previous convictions and contempt of Court for similar matters” to be permitted by post. This was done on 8 February.

Slater subsequently confirmed receipt and again made promises to repay customers. On the expectation that these promises would once again fail to be honoured, contact was made with all the victims awarded compensation in the Interim Order with a view to obtaining sworn Affidavits that they had not had any monies repaid.

application without further consultation or a formal undertaking.

The Competition and Markets Authority (CMA) was notified of the engagement process and our intention to seek an Enforcement Order as required by section 219(6) of the Enterprise Act by way of the Sanctions Information Database (SIDs) system on the National Anti-Fraud Network (NAFN). Slater was flagged on the Citizens Advice Consumer Service System so every time we received a complaint it came through as a referral, and consumers were sent a standard victim questionnaire that allowed us to quickly gather essential information.

We sought advice from our usual Process Servers for service of the Issued Application Bundle and provided them with some information regarding difficulties accessing the traveller site where Slater lived. On 13 July a bundle was served by placing it on the ground outside Slater’s pitch. Slater rang our solicitor and confirmed receipt of the bundle, and gave his assurances he would repay all the

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victims as he wanted to avoid Court action.

Slater continued to offend however, and we chased the Court as we still had not heard back about a hearing date by November 2018. We began to have some concerns about the so-called ‘fast-track’ resolution the Enterprise Act was promoted as providing.

A hearing date was finally scheduled for 4 January 2019. Based on the statements, the Judge was satisfied that Slater was a rogue trader who had chosen not to cooperate with the legal process. Critically, Slater – who did not show up to the hearing – was aware of the claims for liquidated damages and did not challenge the figures.

The Judge said he would make an Order along the lines set out in draft handed up to him. The Order required us to carry out personal service on Slater; however, when the service agent attempted to visit he noted that individuals on the site now claimed Slater did not live there, and that several large and aggressive dogs were now loose. Personal service was therefore not possible, so we had to apply for service

The Tempest An application for Committal for contempt of Court (by breaching the Enforcement Order) was made on 10 June 2019. On 8 July we received an Order from the Court regarding personal service of the committal action and notification of a hearing date of on or after 5 August.

Affidavits were obtained from further victims as a result of more complaints, and these were added to the Committal application. On 23 November we received notification that a trial date had been set for 7 May 2020.

The Judge indicated in the Listing that witnesses should attend. However, by January 2020 the emergence of COVID-19 meant that we would soon be entering a national lockdown, and whilst attending Court was essential travel, few elderly or vulnerable victims were willing to physically attend as a result.

Agreement was reached with Counsel to obtain confirmation from them all that they had not received any of the Courtordered compensation, and that I would put this into a single sworn Affidavit produced by myself.

On 7 May 2020, the directions hearing occurred in front of HHJ Hellman. Slater attended by telephone. Counsel and our solicitor were surprised by the Judge

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Enterprise Act enforcement By Iain Bailey

finding an error in respect of the Penal Notice on the Order. Counsel advised that this was not the usual form within which an Enforcement Order is granted, as a Penal Notice would normally be attached to the Order made and directed as such.

The Court initially took the view that the Committal proceedings would have had no basis on which to proceed.

However, rather than determining that the proceedings should be dismissed, given the lack of compliance and the issues related to this matter, the Court gave us the option to withdraw the application, which was promptly taken.

This was shocking news to us, as we were not permitted to attend the hearing and had no warning the Court would have any concerns as to our application.

Thereafter the Court focused on the Enforcement Order and resolution of the issues related to a penal notice not being ordered to be attached. The Court ordered that a penal notice be attached, which effectively meant that the Enforcement Order would now take effect from the date of this hearing, meaning that the Defendant had until 7 June 2020 to comply with the Enforcement Order.

Much Ado This was extremely frustrating news.

We had wanted to pursue committal for contempt of Court by breaching the Order, and introduce new witnesses to reflect the ongoing consumer detriment occurring over the extended period of time the Enterprise Act action had taken to progress through the Courts. The news that the complaints received by further victims following the previous Enforcement Order could not be used to seek a breach was also unpalatable to these victims.

On 4 September the Order was received, allowing us to serve the committal application by placing it in Slater’s letterbox – which had previously been repeatedly vandalised or had its number removed by parties unknown. A directions hearing took place on 23 October. At this point, three new victim Affidavits were obtained from further complaints received after the revised Enforcement Order came into effect.

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The next hearing was then delayed due to Court availability until 9 December. The three new witnesses all attended in person – Slater did not. On 16 December the Judge requested we complete a new N600 procedural committal form as it contained all the information that we needed to provide to Slater in one document. This was duly done, and served by post on Slater on 17 December.

On 4 January 2021 we received notice that trial had been relisted for 25 February for one day at the Central London County Court. We made enquiries to see whether the witnesses could attend on this day, and two of the three were willing.

I once again contacted all 13 victims ordered to receive compensation in the original (and subsequently amended Enforcement Order). They all confirmed (again) that they had not had any direct payment from Slater.

The day before the trial date, the Court informed us the Judge had a diary conflict and the matter had been relisted

“Whilst attending Court was essential travel, few elderly or vulnerable victims were willing to physically attend” for 90 minutes on 9 April. By that date, according to our complaint data, since the Enterprise Act Order was obtained on 8 May 2019, 26 victims had complained, with £151,200 in consumer detriment.

On 9 April 2021, three-and-a-half years since we started Enterprise Act action, and despite Slater not attending Court, HHJ Lethem was content to find our application proved and to proceed to sentencing in his absence for contempt of Court.

In passing the sentence, HHJ Lethem said this was a serious matter. Slater had a history of previous convictions and contempt of Court for similar matters.

He described him as a sophisticated conman and fraudster. The Judge then went on to praise two witnesses who attended

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Court, saying without their courage in being prepared to come and give evidence, to stand up for vulnerable people who are preyed upon by people like Slater, justice could not be progressed. He stressed their courage in attending, particularly during the pandemic.

A nine-month immediate custodial sentence was imposed. We were also awarded our costs. To say we were relieved to get to this point would be an understatement.

On 25 May we were notified that Slater had lodged an Appeal against the decision to commit him to prison. The Appeal was heard in Slater’s absence, and it was dismissed. The warrant remained extant, and Slater was sought for committal to prison. Despite repeated visits to his home address by the Police and numerous telephone calls in which he stated he would surrender himself without delay, Slater avoided being detained until 7 September.

After much pressure he eventually surrendered himself to Kingston Police and was remanded in custody.

All’s Well That Ends Well?

When the Enterprise Act came out in 2002, I recall being lectured that civil injunctive action was the future, and that it was a fast-track tool to consumer protection, with ‘Stop Now’ orders available in just a couple of weeks. Authorities who stuck firmly to criminal proceedings were behind the times, and everyone should start using the Enterprise Act. I admit I was sceptical then, and remained so for some time. I don’t think I was alone in that scepticism.

Nearly two decades later I have to say that from personal experience it seems that that bright future still hasn’t caught on, as everyone we worked with, including the Courts and Judges, had little or no experience of progressing such action through to contempt proceedings, and there was little or no relevant case law or precedents. That, and the fact the National Sanctions Database had no way of recording it, means we believe we have truly trodden new ground here.

Far from being fast-track, the entire process was painfully slow, adding complications as new complaints were

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being received all the time. COVID-19 added a further spanner to the works, making obtaining sworn Affidavits and Court dates and victim attendance extremely difficult, especially when it involved vulnerable victims. Changes to legal procedures half-way through hearings, differences of opinions between different Judges hearing applications, and a lack of any directly relevant case law or precedents, all made it even more painful.

Would we do it again? Or would we go back to criminal proceedings in a similar situation? HHJ Saggerson queried

“Far from being fasttrack, the entire process was painfully slow” why the matter had not gone down the criminal route. This was a consistent query from the Judges involved, as well as our own counsel. Whichever route we chose, victims were never likely to get any compensation or recover funds lost.

However, at least the Order indicated that we applied for such, and those named victims were recognised by the Court as being entitled to such recompense, and that failure to pay it was contempt. Small comfort I know, but better than nothing.

It should be remembered that the Enterprise Act Enforcement Order has no expiry date. Upon his release from HMP Pentonville, should he breach any of the conditions of the Order, Slater will be exposed to us making another application for Committal for contempt. Hopefully, of course, this would be swifter to progress and involve fewer surprises. n

About the author

Iain Bailey is an Environmental Protection Officer - Trading Standards at Kingston & Sutton Regulatory Services. For further information about the case, colleagues can contact trading. standards@kingston.gov.uk

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Energy matters

By Steve Playle

Do we have the energy to fight climate change?

The effort to combat climate change will require new technologies in homes and a shift in consumer behaviour.

Steve Playle examines the role trading standards has to play It’s impossible for a day to go by without seeing or hearing something about climate change – never more so than when Glasgow hosted COP26 in the first two weeks of November. The COP26 summit brought parties together to accelerate action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change. Whether anything meaningful was actually achieved remains to be seen, but the hope of limiting global temperature rises to

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1.5°c is still very much alive – although, according to Alok Sharma, the President of COP26, its pulse is weak.

Looking at the science, human activity is the main cause of climate change.

Burning fossil fuels such as oil, gas and coal produces carbon dioxide (CO₂), a greenhouse gas, so-called because it produces the ‘greenhouse effect’. I do not intend to deliver a lecture but a vital step forward is for humankind to reduce CO₂ emissions and, in the longer

term, eliminate them. The UK does not actually contribute an awful lot to CO₂ emissions these days but we are now in a global economy and everyone has to step forward and do better.

We all take energy for granted. It’s always there at the flick of a switch on a cold night, when you turn on your PC or when you fancy a cup of tea. There is a massive infrastructure of energy generation and distribution behind the switch and there is a National Grid control room at a secret location that constantly balances supply and demand.

To understand where our electricity comes from, I’d recommend taking a look at the website grid.iamkate.com, which shows the real-time mix of fossil fuels,

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“Has the climate change agenda got anything to do with trading standards? A properly resourced profession could have a tremendous input”

renewables and nuclear generation that keeps the lights on.

It is quite rare these days that any coal power stations need to be fired up and in the past year, about 25% of our electricity came from renewables – that is solar, wind and hydro. But in the past year, we have also still relied on fossil fuels, primarily gas, to produce 42% of our electricity.

And this is the problem, because the combustion of gas creates CO₂, which contributes to global warming.

The UK Government has committed to making electricity generation fossil fuelfree by 2035, which is a massive challenge and will require further investment in wind and nuclear generation. But the elephant in the room is that when the sun doesn’t shine and the wind doesn’t blow, we need to get electricity from somewhere else if we can’t just turn on the gas-fuelled power stations.

The other consideration is keeping homes warm and having hot water available. I can’t find any official data but best estimates show that there are 23

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million domestic properties using a gas boiler to produce hot water and heating.

The same estimates suggest that domestic gas boilers produce double the amount of CO₂ that is spewed out by our gas-fired power stations. The Government has announced that by 2025, all new homes will be banned from installing gas and oil boilers and will instead be heated by lowcarbon alternatives. No date has been set yet for gas boilers to be banned altogether but this will be a logical, if unpopular, move in the near future.

Has the climate change agenda actually got anything whatsoever to do with trading standards? In my role as CTSI Lead Officer for Energy, I think that a properly resourced trading standards profession could have a tremendous input and I will try to explain why.

The role of trading standards Part of the overall solution is to reduce our demand for electricity or heat, which will mean burning less gas and releasing less CO₂. We have all heard of the pressure group Insulate Britain, and they have certainly made an impact with their unconventional and disruptive demonstrations.

The truth is that UK governments have been trying for a long time to insulate the UK housing stock. One of my first jobs as a trainee trading standards officer nearly 40 years ago was to get up into the roof space of domestic premises in Walthamstow to check the depth of

insulation material that had been blown in, paid for using grant funding. It was supposed to be six inches thick but I found it was usually fine around the loft hatch but non-existent in the corners.

In 2013, £400m of public money was spent on The Green Deal, which Ministers trumpeted as “the biggest home improvement programme since the Second World War”. I sat on the Green Deal Consumer Protection Panel but my lone trading standards voice was sometimes lost within the businessdominated group. The scheme was abandoned after two years as MPs admitted it had been a “complete fiasco” that brought almost no environmental benefits.

More recently, in 2020, Chancellor Rishi Sunak introduced the Green Homes Grant with a target to spend £2bn to help 600,000 households reduce their carbon footprint. The scheme was axed in early 2021 and the National Audit Office said: “It was not executed to an acceptable standard, significantly limiting its impact on job creation and carbon reduction.”

It is clear that there is an appetite to try to insulate Britain but it really isn’t that simple. On the one hand, there are some businesses which see such initiatives as an opportunity to make a fast buck, misleading consumers along the way and leaving properties in a worse state than when they arrived.

Balancing levels of insulation and air circulation is not easy, and if carried out incorrectly can leave householders with sometimes very serious damp and condensation issues. On the other hand, I think many consumers find it difficult to understand the many complexities and potential benefits of insulation and choose to do nothing. Many consumers do not embrace change and there is a real challenge here for the behavioural scientists.

In terms of domestic heating and hot water, the pressure is on heat pumps to fill the void that will be left by the demise of the fossil fuel boiler.

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Energy matters

By Steve Playle

There are two main types of heat pump. Air source heat pumps extract heat from the atmosphere around the unit placed outside your home. Ground source heat pumps require fluid-filled pipes to be buried in your garden and heat is extracted from the soil.

The technology is evolving all the time but the costs are high, out of reach of most households at the moment, even with the benefit of limited subsidies that may be available. The costs will most certainly reduce over time and it remains to be seen whether consumers will take the plunge and embrace heat pumps.

Part of the problem is that the jury is out on whether this technology can deliver the same level of heat and hot water as a traditional fossil fuel boiler. If a recent Daily Mail article by renowned former BBC journalist John Humphrys is anything to go by, installing a heat pump does not replicate the traditional boiler experience. Others say that where heat pumps have been installed, they are perfectly satisfactory and perform the heating functions well.

It will be interesting to look at the future marketing promises made by the suppliers of heat pumps and whether they are accurate or not. The reality is that a move to heat pumps will require a

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“It will be interesting to look at the future marketing promises made by the suppliers of heat pumps and whether they are accurate or not” seismic shift in consumer behaviour. It will no longer be possible to flick a switch and heat up the house in 15 minutes.

Instead, the electrically driven heat pump will need to be whirring away 24/7.

Added to that, an existing home where a heat pump is installed is likely to require upgrades to the plumbing, radiators and insulation efficiency but, even then, the notion of walking around your home in winter in shorts and a T-shirt may be a luxury of the past.

Getting smart I believe that balancing the supply and demand for electricity, with no recourse after 2035 to the instant fix that gas-fired power stations can currently provide when required, is going to be an extreme

challenge. This is where I have a theory that smart meters will come into play and demand will be regulated through carefully manipulated pricing structures.

When demand for domestic electricity is highest – normally between 1600 hours and 1900 hours on weekdays – the unit price will rocket and those who are less able to afford it will be forced to change their behaviour. I have been watching the evolution of the £11bn smart meter rollout and some of the misleading claims being made about them very carefully for the last five years. Although they aren’t compulsory at the moment, I think it is just a question of time.

Another way of balancing the supply and demand for electricity is through the use of battery storage to make up for shortfalls in generation during peak periods of demand. If you think about the growing move to electric cars, one solution may be that you run the immediate electricity demands of your household from your electric vehicle’s battery and then recharge it in the middle of the night when demand is low. Or there will be a growing industry for the installation of domestic battery storage capacity in the cupboard under the stairs, which can be used in the same way.

A move to this type of technology – all mostly paid for by consumers by the way – and the opportunities for businesses to promote and sell the necessary hardware and services in less than a generation, is a real concern.

The multi-billion-pound investment by consumers in home insulation, heat pumps, smart meters, electric cars and domestic battery storage will transform the UK in the next 15 years. What could possibly go wrong? The truth is, everything. The trading standards voice needs to be heard every step of the way to protect consumers, reputable businesses and the planet. n

About the author

Steve Playle is CTSI Lead Officer for Energy and Smart Meters

Winter 2021

Consumer Codes Approval Scheme (CCAS) With more than £97 billion of consumer spending protected, CCAS continues to help businesses raise industry standards.

By promoting CCAS to businesses, this encourages consumers to make the right checks before they purchase.

Displaying the CCAS approved logo will help businesses to promote themselves as one that consumers can trust.

Being a member of CCAS can help to support tender applications.

CCAS is operated by the Chartered Trading Standards Institute. www.tradingstandards.uk/consumercodes

00 t 80,0 s o m re Al ses a s e n i f bus art o p w no S CCA

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In conversation with: Yvonne Rees

Journal of Trading Standards

I N C O N V E R S AT I O N W I T H

YVONNE REES

A former trading standards officer who now sits at the top of two local authorities, Yvonne Rees knows full well the impact trading standards can have – and has a wealth of advice about budgets, career and leadership

BY RICHARD YOUNG

As Chief Executive of both Oxfordshire County Council and Cherwell District Council, Yvonne Rees is constantly performing a high-stakes balancing act.

Responsible for large teams of people and departments across the entire gamut of council activities – from road repairs to household waste collection and libraries to adult social care – her job is to find ways of ensuring the budgets at her disposal are allocated as effectively and efficiently as possible, and that the communities she serves receive value from their hardearned council tax.

Of course, one of the areas of council activity Rees is responsible for is trading standards. And, having started her career as a trading standards officer and climbed her way to the top of the tree, she has a unique perspective on how trading standards fits into the bigger picture of council activities – and how trading standards managers can best make their voices heard when it comes to winning the ears of their bosses when budgets are being allocated.

“I started as a trainee trading standards officer in Tonbridge in Kent,” she explains. “I didn’t even know the job existed and when I left university I was trying to decide what to do. My mum went for a receptionist job in the local trading standards department and came back with a leaflet. I thought it sounded interesting; I get bored really easily, so I wanted to do something with a bit of variety. I contacted them and they happened to have some trainee posts.

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“I genuinely believe my trading standards background has set me up for the rest of my career. It gives you a customer focus, in combination with being driven by legislation, and having the ability to look at evidence and cut through to the heart of the issue,” she says. Since being able to deal with people – often in quite difficult circumstances – is also a prerequisite of the job, Rees believes, “it means you need to have something about you. I think it’s a really strong background.”

So how do Rees’s trading standards origins affect her outlook and priorities as a Chief Executive? “I started off doing a lot of community safety,” she says. “It was really frontline and helped me to understand the impact trading standards can have. I absolutely am driven to improve the lives of our residents, and I believe that’s because I spent a lot of time on hearing about their problems.

“I genuinely believe my trading standards background has set me up for the rest of my career. It gives you the ability to look at evidence and cut through to the heart of the issue”

“One of my very first line managers in trading standards, Derek Dolbear – who was just God as far as I was concerned – always used to say to me, when you read a piece of legislation, the most important words are the joining words, the ‘ands’ and the ‘ifs’. Once you learn to read a piece of legislation, whether it’s on product safety, food, or animal health, the content is pretty much the same, the subject just changes.

“That’s really important to me, because I have the ability to look across lots of subject areas; that’s what trading standards brings you. One minute you’re talking to someone about a washing machine, the next minute you’re looking at counterfeit goods. It gives you the ability to look across different agendas really quickly. I think that makes me really appreciate different people’s roles and the absolute need to always remember why we’re here. The reason we do what we do, whether it’s adult social care, or fixing a pothole, is because those guys out there pay their council tax.”

Adding value Speaking of the money side of things, I ask Rees about a speech she gave at CTSI Symposium in September. During a plenary session addressing the need to make trading standards fit for the future, she spoke about how when it comes to competing for budgets, trading standards professionals need to demonstrate the value they bring to their organisations.

What did she mean by that?

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In conversation with: Yvonne Rees

“I’ve watched regulatory services move down the management pile,” she says.

“If you go back 10 or 15 years, a Head of Trading Standards or Environmental Health was probably second or third tier in their council. Now they get pushed further and further down, and the further down in an organisation you go, you get lost. So there’s a need to demonstrate added value rather than just sitting in your small silo.

“I would say to trading standards officers that COVID-19 is a really good example of this; you have come back up the priority list because of all the work that you had to do. If you don’t capitalise on this now, you’ll become a forgotten profession. And when you are forgotten, it’s really easy to salami-slice your budgets every year.”

Influencing the agenda So as someone who controls the purse strings, how does Rees think trading standards managers need to approach funding? “You need to recognise that your regulatory background gives you the ability to influence the wider agenda, which at the moment is where the pound signs are,” she says. “And it stops me, as a Chief Executive, just disregarding you and taking more and more money out.

“You need to demonstrate to me what you can do to support and assist my adult social care; what can you do to link in with my housing services? What value do you add to my whole organisation rather than just looking down, blinkered, in your silo?

That’s what I expect to have.”

Asked why she thinks trading standards has been somewhat sidelined in recent years, Rees says she sees the problem as something of a selfperpetuating cycle. “I suspect it is because everybody’s shrunk their service areas,” she says. “So the smaller you get, the less influential you can be.

“For me, it’s a real sadness. But also, I don’t think the profession has helped itself, to be brutally honest. We need to think beyond our own boundaries.

We need to be braver. When you look at redesigning your services, make sure you can lift and shift and bolt other bits in or join other bits up. Some people want

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Rees (centre) at a 2021 Symposium plenary session with CTSI Chief Executive John Herriman and CTSI Vice Chair Tendy Lindsay

to stick to their little empires but for me the solution is around collaboration and partnership. We won’t survive, or be as effective as we could be, in small pockets in single authorities.

“COVID-19 has opened a very small window of opportunity for trading standards to genuinely retain the respect it earned by demonstrating the added value it gave, on both a local and national level. It would be really easy to slip back. It’s a one-off opportunity to stay relevant. And you’ve got to influence the likes of me. My Head of Service is really lucky, in that he knows my passion, and I understand the service. But I still make him work hard to try and demonstrate the added value it brings. There’s no point influencing your middle managers; you’ve got to make sure that your senior teams and your senior politicians see you.”

Properly funded, effective trading standards services can save councils money in the long term; for example, supporting vulnerable residents who have been targeted by rogue traders could ease the burden on adult social care down the line. Do council bosses appreciate that?

“With prevention, the decisionmakers have to recognise that it’s going to save them money tomorrow,” Rees agrees. “Trading standards needs to be recognised as a key part of the prevention agenda. My advice is to think less around enforcement specifics, and more about how you can link into some of the bigger agendas, and potentially you need to change some of the language that you use.

“So for instance, at the moment in Oxfordshire, one of the big public health priorities is to go smoke-free. Now, part of that work will be dealing with counterfeit tobacco. It’s about joining those dots. It’s not about saying, ‘I’m just going out to do some anti-counterfeiting work’, it’s about how you can join this with the bigger agendas. Ask yourself, ‘How do I change my language to make sure that my Director of Public Health thinks what I’m doing at the corner shop is really important?’

“Whatever level you are at within an organisation, look around at what your colleagues are doing, and have conversations about how trading standards can complement that.”

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Journal of Trading Standards

“Whatever level you are at within an organisation, look around at what your colleagues are doing, and have conversations about how trading standards can complement that”

The real deal Ensuring that trading standards is fit for the future is not just about funding – it’s also about keeping the profession vibrant and relevant to new and existing members. So how can trading standards capture the imaginations of more young people so they see it as a viable career choice, and how can it retain its existing pool of talent?

“We have to make sure that staying in the profession is attractive,” says Rees. “Trading standards isn’t the only area where it’s a problem. We have massive problems with retaining planners in building control, for example; there are lots of professions where, once you’ve trained, there are more pound signs elsewhere. But if you’re ambitious, if you want to be the next Chief Executive or Corporate Director of your local authority, then a career in trading standards will stand you in really good stead. But you’ve got to have an enquiring mind, and you’ve got to look across the organisation and join the dots.

“I was probably really hard to linemanage, but my bosses gave me loads

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of opportunities to look all over the organisation and step into other areas.

So I always encourage people to go and try different things. I think the core of a regulatory background gives you the ability to do that – you can have a really senior career with that background.”

As a self-described ‘straight talker’, does Rees ever get frustrated with the somewhat slow pace and byzantine bureaucracy of national and local politics?

“I love the politics!” she exclaims. “I’m passionate about it. [In Oxfordshire] we’ve just had a change of administration, so we’ve gone from Conservative to a Liberal Democrat, Green and Labour alliance. I work hard to gain credibility, trust and respect, as you should in any profession.

Do I get frustrated? Yes. Does that make me a better Chief Executive? Yes. Because I want to improve all the time and I want our services to improve all the time.

“Another of my former managers, Peter Dennard, always used to say to me, ‘Sometimes it’s easier to seek forgiveness than permission.’ I kind of operate like that. Don’t get me wrong – there are some times when I do what I’m told, but for me, it’s about finding creative solutions. We have financial constraints and we need to be creative on how we drive out of them.

“I’ve had some really inspirational managers who let me be me, and let me grow my enquiring mind. It’s why I’ve stayed in local government, because they really inspired me to want to make the difference. Critically they also gave me permission to do things my way – or I took it and then said sorry later.

“You have to be true to yourself because if you don’t, it will find you

out. Be the best you can be. When I interviewed for the Chief Executive role, with my pink, purple and blue hair, my husband said to me, ‘Are you going to dye your hair so it looks normal?’ ‘First of all,’ I said, ‘how long have you been married to me? Is this not normal?’ And then I said, ‘No. Because this is me, and if they don’t want me, I don’t want them.’ You have to be brave enough to accept yourself and be comfortable in your own skin.”

That sense of humanity – there being a real person behind the job title – is perhaps lacking in many popular attitudes towards local and national politics. To what extent does Rees think that a certain cynicism has developed as a result of people not feeling engaged in the process of decision-making where they live?

“We’ve just done some customer surveys and there is definitely a drop in feeling [of being engaged],” she says. “I think it’s due to a combination of things.

We used to send out quarterly newsletters that helped keep people informed and engaged. But since austerity came, nobody does that any more, so we’ll do it online, and some people do read it, but only those that are really interested.

“Do we do enough to celebrate what we’re good at? No. My inbox is filled with complaints, but very rarely do I get someone thanking me. When I do, I really celebrate it. I don’t think we’re visible and vocal enough, and I don’t think people really understand what we do. They probably think we just fill potholes and aren’t very good at it.

“I think central government are much more aware of the value that we add than they were because they’ve had to lean on us so much throughout COVID-19.

“But most people think that if you ‘work for the council’, you’re probably a fundamentally useless bureaucrat.

They’re not right. I view it as an honour and a privilege to do what I do for a living. But I’m not the one that does the work. I just join the dots in front of politicians. Actually, it’s all the back-end teams that do it, and it’s breathtaking. Some of the work that our people do is just amazing.” n

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Cross-border justice

By Elisabetta Sciallis & Jacqueline Minor

NEW BORDERS TO

CONSUMER

PROTECTION

As the picture becomes clearer of how EU Exit will affect the rights of UK consumers, Elisabetta Sciallis and Jacqueline Minor take stock of the emerging landscape

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Journal of Trading Standards

Since the UK’s withdrawal from the EU, there have been significant changes for consumers who wish to purchase crossborder or have other dealings with crossborder elements. This article takes stock of some important trends and changes we have seen regarding cross-border access to justice in the 10 months since 31 December 2020, when the UK became a third country. In particular we look at the challenges, opportunities and policy issues as they relate to: the changing nature of cross-border complaints; new EU laws and potential divergence; crossborder court remedies and the removal of direct instruments available for consumers; and changes in cross-border enforcement and consumer protection.

Fresh cross-border issues In the wake of EU Exit and the emergence of the COVID-19 pandemic, according to data from the UK International Consumer Centre (UK ICC), there has been both an increase in cases related to traditional sources of cross-border detriment, and the emergence of some new issues directly related to the EU Exit restructuring. In terms of the traditional sources of cross-border consumer complaints, e-commerce, holiday/flight cancellations, timeshares and holiday clubs remain significant. However, there has been a significant increase in issues with intermediaries, fraud and subscription traps.

Many of the complaints regarding purchases made through booking intermediaries have related to flight cancellations where passengers reported a lack of refund in line with their rights, a situation that appears to have been exacerbated by the pandemic. According to Regulation 261/2004, if a flight is cancelled by the operator, the consumer should be refunded within seven days.

However, in some instances airlines have been refusing to deal with consumers who booked via an intermediary. In

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such cases the intermediaries initially denied liability; however, more recently they have started agreeing to help consumers, although often for a charge and with mixed results. There also remain consumers who have been waiting in excess of 12 months for refunds, often where the intermediary and airlines are unwilling to compromise. Regarding fraud, approximately half the fraud cases received by the UK ICC related to purchases made using e-commerce and, in particular, consumers who had become involved in financial trading, such as making investments in foreign exchange or cryptocurrency.

EU Exit and the pandemic have also added new types of complaints and further levels of complexity for those seeking justice cross-border.

New complaints include issues with unexpected VAT and customs charges on cross-border deliveries. Often consumers have simply not been made aware that VAT, custom charges and handling fees are now due on certain transactions.

For example, in transactions that were initiated pre-EU Exit, but in which delivery took place under the new rules, customers have incurred unexpected double charges.

There are also added complexities and uncertainties such as when dealing with multi-party claims (particularly with the use of intermediaries) and concerning subscription services; for example, where a consumer paid an annual subscription to receive beneficial travel rates.

THE ADVENT OF NEW RULES UNDERLINES THE POTENTIAL FOR DIVERGENCE. UK CONSUMERS WILL NOT (USUALLY) GET THE BENEFIT OF THESE CHANGES

Changing consumer environment Markets rarely stand still, and the best businesses evolve, adopt new technology and delivery models, create new products and services, and meet emerging consumer demand. But with innovation come new unfair practices, new opportunities to exploit consumers, particularly the most vulnerable, and newly exposed gaps in consumer protection legislation.

With that in mind, the EU evaluated the effectiveness of its existing consumer rules, decided that a number of improvements were called for and brought forward proposals that eventually resulted in the quaintly named ‘Omnibus Directive’ (Directive 2019/2161), which will apply in the EU from the end of May 2022. The Directive makes important changes: it aims to ensure that consumers purchasing digital content, goods and services enjoy the same rights and remedies as in the offline world; it puts in place new rules governing so-called ‘free’ services where a user provides their data in return for services, and it creates transparency requirements for online marketplaces. Of course, none of these new rules will apply in the UK, although companies operating in both jurisdictions may choose to adopt a single set of terms and conditions.

The advent of new rules underlines the potential for divergence. UK consumers will not (usually) get the benefit of these changes. The UK government has also declared its intention to modernise consumer law, by publishing a Green Paper in 2018 and commissioning the independent Penrose Report, published earlier this year. It has also launched an extensive consultation on Reforming Competition and Consumer Policy, in July this year. It may be too early for these to yield concrete proposals but government bills in the UK can generally be guaranteed a speedy passage through the legislative process and rapid entry

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Cross-border justic

By Elisabetta Sciallis & Jacqueline Minor

into force. An individual jurisdiction, like the UK, can often adapt to market developments with greater agility than the EU, which needs to muster support across a majority (at least) of its Member States.

But, as with the recently announced delay to the introduction of the UKCA marking, the UK government may come under pressure from stakeholders resistant to the cost of complying with different and potentially conflicting rules. The economic heft of the European Single Market will have to be weighed against the desirability of introducing new rules which, in the view of the government, better suit the needs of UK consumers.

Going to court after EU Exit A significant cross-border issue post-EU Exit is related to litigation. If consumers have a cross-border dispute with a trader that cannot be resolved through the help of the UK ICC or by the use of Alternative Dispute Resolution (ADR), then consumers are left with few options other than to take legal action against the trader.

Before EU Exit, the EU framework for judicial cooperation in civil matters provided several specific procedures to access justice cross-border, such as the European Enforcement Order, the European Order for Payment and the European Procedure for Small Claims.

Judgements were directly enforceable in another EU country via these routes thanks to the so-called ‘Brussels Regime’.

The Brussels Regime dates back to the Brussels Convention of 1968 and comprises a series of EU legislative instruments and treaties, which operate in a reciprocal manner between EU Member States. There were also a number of international conventions, the most significant of which are the 2007 Lugano Convention (which has very similar scope and rules to the Brussels I Regulation) and the EU/Denmark agreement.

However, the UK/EU Trade and Cooperation Agreement setting out arrangements post-EU Exit does not

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include civil justice, meaning that the above instruments are no longer available in the UK. The Brussels Regime has now ceased to apply in the UK, and UK consumers will not be able to pursue traders via these routes unless they lodged their complaint before the end of December 2020.

This means that since EU Exit, there are far fewer options available to consumers. The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479), which came into force in January 2021, have been made to address reciprocal arrangements which no longer exist due to the withdrawal of the UK from the EU. These Regulations make amendments to legislation in the field of civil judicial cooperation, including addressing questions about the court in which disputes should be adjudicated and the recognition and enforcement of judgments.

The rules continue the particular protections offered to consumers domiciled in the UK by the Brussels Regime, including a right to be sued and a right to sue in relation to a consumer dispute only in the part of the UK in which they are domiciled (regardless of the domicile of the other party). This is therefore quite similar to the position before EU Exit. However, these rules will not be applied reciprocally by the courts of EU Member States. Other than this, the only convention that applies postEU Exit is the 2005 Hague Convention on Choice of Court Agreements but it applies only in specific circumstances.

THOSE WISHING TO TAKE FORMAL ACTIONS AGAINST AN EU TRADER… ARE OBLIGED TO COMPLY WITH THE RELEVANT NATIONAL LAW OF EACH EU MEMBER STATE

For example, this convention may affect consumers in relation to any Ts & Cs they may have signed but it is not an accessible procedure like the Small Claims procedure referred to above. The UK has applied to re-join the Lugano Convention, although at the time of writing this application is still pending.

If it is accepted, this will set out the jurisdiction rules for consumers and allow a mechanism for judgments to be enforced in other countries.

In a nutshell the above means, as far as UK consumers are concerned, those wishing to take formal actions against an EU trader will now need to start their claims in the appropriate UK court as ordinary civil claims and are obliged to comply with the relevant national law of each EU Member State. This is likely to include the need for UK consumers to make representations directly in foreign courtrooms. These are considerable changes and ultimately new barriers for consumers, particularly the vulnerable and the digitally disadvantaged. There are no straightforward, clear, low-cost and

Winter 2021

Journal of Trading Standards

THESE ARE CONSIDERABLE CHANGES AND ULTIMATELY NEW BARRIERS FOR CONSUMERS, PARTICULARLY THE VULNERABLE AND THE DIGITALLY DISADVANTAGED

quick instruments that UK consumers can use to pursue a trader located in Europe as before EU Exit.

Enforcement of consumer law Before its withdrawal from the EU, the UK was an active member of the Consumer Protection Cooperation (CPC) network. The network was put in place to enable enforcement bodies such as the Competition and Markets Authority (CMA) to work with their counterparts across Europe by requesting them to take action against practices causing harm to consumers at home. The CPC Regulation was reinforced in 2020 to facilitate coordinated action across the EU in the case of a widespread infringement.

The UK can no longer make use of the Regulation and UK enforcers have also lost the benefit of regular structured contact with their European opposite numbers; meetings of the CPC network were an occasion to share intelligence and know-how with other consumer bodies. Over time the loss of access to the formal procedures and the benefits of

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personal contacts and knowledge-sharing will have an impact upon the effectiveness of cross-border enforcement.

In its 2018 White Paper, the Commission committed itself to pursuing agreements on mutual cooperation in the consumer field. It cites, in particular, the USA and Canada (and, eventually, China).

Such an agreement might also be possible with the UK, although it would be unlikely to provide the same degree of integration as the CPC network.

Conclusions Whilst recent socio-economic and political events suggest we are likely to see a more rapid divergence from substantive laws in some sectors more than others, EU Exit has left a significant gap in consumers’ access to justice, meaning there is considerable work to be done on the procedural side to find new routes to redress.

The ideal direction of travel for crossborder disputes post EU Exit is to find and implement new solutions that allow UK consumers to continue to feel confident

in entering contracts with EU suppliers, reassured in knowing that, in case of problems, they would find an established set of organisations and remedies to deal with their disputes. Conversely, leaving the current status quo in place will lead to ineffective, complex and expensive means of redress which may well have an adverse effect on UK consumers’ confidence, resulting in fewer cross-border transactions with the EU. The same would be true for EU consumers wanting to buy from UK businesses, thus affecting the performance of the UK market as a whole. In the meantime, given the complexities introduce by EU Exit and the vacuum in procedures for resolving cross-border consumer disputes, the UK ICC can play a role in helping consumers navigate such issues. n

About the authors

Elisabetta Sciallis is the UK ICC Executive, a qualified lawyer and accredited mediator and arbitrator, specialising in cross-border dispute resolution and access to justice.

She is a member of the Law Society Civil Justice Committee.

Jacqueline Minor is a retired EU official. Between 2008 and 2013 she was Director for Consumer Policy in the European Commission and from 2013 until 2017, she headed the Commission’s Representation to the UK.

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CPPD Module

WORDS BY

Stephanie Young CTSI Lead Officer for Animal Health and Welfare

Continuing Personal Professional Development Module

The systematic improvement of your vocational knowledge and skills - both through expansion and refinement – is absolutely essential in keeping on top of an ever-changing regulatory landscape at this time of restricted resources.

As part of its role leading the trading standards profession the CTSI offers free CPPD modules through its publications.

The Journal of Trading Standards is pleased to offer the latest in the series here.

After reading the article, you can head to the CTSI website to complete the questions (also included on page 52).

More details are included on the following spread.

Successful completion is worth one hour of CPPD.

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CPPD Module 21:

Animal food and feed: Regulating the regulator The Official Control Regulations place new responsibilities for agri-food monitoring on already stretched trading standards teams. The CTSI Professional Qualification for Animal Health and Welfare is here to help

In 2019, one of the main plenary sessions at CTSI Symposium posed the question: ‘with diminished trading standards resources, are we prepared for another crisis?’ The session, led by former CTSI Chair David Riley, discussed the events of BSE in the 1990s, foot and mouth in 2001, the horsemeat scandal of the 2010s and then in recent years the Whirlpool crisis and the Grenfell Tower tragedy of 2017.

A common theme that arose from this discussion was that a number of past crises had arisen due to a failure to comply with regulatory controls, primarily in those sectors involving food, feed, and animal health, known as the ‘agri-food’ trade, resulting in an estimated cost of billions of pounds to the UK economy.

In recognition of the regulatory responsibilities for protecting the agri-food trade, over the years, the EU has legislated in a number of areas to provide for a set of harmonised rules to ensure that food and feed are safe and wholesome, and that activities which might have an impact on the safety of the agri-food chain or on the protection of consumers’ interests, or animal health and welfare interests, are performed in accordance with specific requirements.

With the departure of the United Kingdom from the European Union, the EU (Withdrawal) Act 2018 transposed all directly applicable EU regulations into UK law, thereby ensuring no ‘cliff edge’ and a functioning statute book

on the day the UK left the EU. As such, retained Regulation EU 2017/625 on official controls remains directly applicable to the UK. This regulation, known as the Official Control Regulations (OCR), places a responsibility on competent authorities to monitor and verify compliance by industry with the laws relating to the agri-food chain and that the standards expected within law are enforced.

The OCR is part of a broader package of official controls brought in by the EU known as the ‘smarter rules for safer food’ (SRSF) package. The regulation lays down rules for the performance of official controls and other official activities by the competent authorities for the verification of compliance with laws, whether established at Union level or by the Member States, to apply Union legislation in the areas of food, feed, animal health and animal welfare.

‘Competent Authority’ is defined in the OCR as either the central authorities of a Member State responsible for the organisation of official controls and other official activities, ‘or any other authority to which that responsibility has been conferred’.

Primary legislation within Great Britain includes the Animal Health Act 1981, The Animal Welfare Act 2006 and the Animal Health and Welfare (Scotland) Act 2006.

These Acts of Parliament, along with other secondary legislation or directly

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Journal of Trading Standards

applicable retained EU regulations to which the official controls relate, are chiefly enforced by local authorities.

Therefore, by virtue of the statutory obligation, local authorities are considered to be a competent authority for the purpose of retained Regulation EU 2017/625.

Whilst it can be argued that the Animal Welfare Act 2006 places no statutory requirements on a local authority for enforcement, the scope of the OCR includes animal welfare and therefore this does place a legal responsibility for local authorities to enforce the laws in this area.

The OCR places a number of obligations on the competent authorities.

These include having procedures and/ or arrangements in place to ensure the effectiveness and appropriateness of official controls and other official

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activities, and having procedures and/ or arrangements in place to ensure the impartiality, quality and consistency of official controls and other official activities at all levels.

For food and feed law, the requirements of the OCR controls are laid down in statutory codes of practice and practice guidance. These codes are overseen by either the Food Standards

“The food and feed law codes of practice prescribe the baseline qualifications that an officer must have to undertake the official controls”

Agency (FSA) or Food Standards Scotland (FSS) and detail the expected standards of delivery for food and feed law enforcement to be undertaken by local authorities.

The food and feed law codes of practice prescribe the baseline qualifications that an officer must have to undertake the official controls and the measures that need to be taken for competency to be maintained. There is no equivalent provision for animal health and welfare despite the OCR making it a requirement that the competent authority must ‘have, or have access to, a sufficient number of suitably qualified and experienced staff so that official controls and other official activities can be performed efficiently and effectively’.

With consideration to the requirements of the OCR and with no baseline qualification prescribed for animal health

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CPPD Module

CPPD MODULE 21: FOOD AND FEED: REGULATING THE REGULATOR Review the 8 questions below, and when you’re ready, submit your answers at tradingstandards.uk/ cppdtest 1. The Animal Health Act 1981 places a statutory duty on every local authority to appoint as many inspectors and other officers as the local authority thinks necessary for the execution and enforcement of the Act. In which section would you find this information?

2. Retained Regulation EU 2017/625 is more commonly known as what?

3. The Official Control Regulations (OCR) are part of broader package of rules brought in by the EU for protection of the agri-food trade. What is this suite of rules commonly known as?

4. ‘Competent Authorities’ is defined within the OCR – what does this include?

5. There is a requirement that staff performing official controls must receive training in accordance with what?

6. Where is the statutory duty to enforce Animal Welfare Laws?

7. What are the requirements of Article 78 of the OCR? 8. What obligations does the OCR place on competent authorities for performing their official controls?

Applicants who complete the module successfully will be given a certificate. The test must be taken by 30 April 2022.

If you have any questions, please email training@tsi.org.uk Previous module answers are available to members on the Journal of Trading Standards website.

52 |

and welfare, in the spring of 2021, CTSI introduced the Professional Qualification for Animal Health and Welfare. The qualification has been developed and is being delivered with due consideration to the devolved administrations of England, Scotland, and Wales, being suitable for all regulators enforcing animal health and welfare rules across GB. The OCR mandates that staff performing official controls and other official activities shall receive, for their area of competence, appropriate training enabling them to undertake their duties competently and to perform official

“The OCR places an obligation on competent authorities to perform official controls on all operators regularly, on a risk basis and with appropriate frequency” controls and other official activities in a consistent manner, and keep up to date in their area of competence and receive regular additional training as necessary.

There is a requirement that staff performing the official controls receive training in the subject matters set out in Chapter I of Annex II of the OCR. This training requirement is extensive and includes not only assessment of noncompliance of food, feed, and animal health rules, but also the capability to identify the hazards and the possible risks to human health, animal health and welfare and the environment at all different stages of production, processing, and distribution.

The OCR places an obligation on competent authorities to perform official controls on all operators regularly, on a risk basis and with appropriate frequency, taking account of the identified risks associated with:

▪ animals and goods ▪ the activities under the control

of operators

▪ the location of the activities

or operations of operators

▪ the use of products, processes,

materials, or substances that may influence food safety, integrity and wholesomeness, or feed safety, animal health or animal welfare

When conducting official controls, consideration must be given to an operator’s past record of compliance and any information that might indicate noncompliance with the rules.

To ensure compliance with the OCR, there is a requirement that the competent authorities carry out internal audits or have audits carried out on them and take appropriate measures in the light of the results of those audits. The audits must be subject to independent scrutiny and carried out in a transparent manner. Local

Winter 2021

Journal of Trading Standards

“Lessons learnt from past crises support the necessity to regulate the regulator to ensure that there is effective monitoring”

authorities are familiar with audits being carried out for compliance with the food and feed law codes of practice by the FSA/ FSS. However, to date there has not been any similar requirement for animal health and welfare and there is no baseline standard on which to base such an audit.

This is an area in which we are likely to see change in the future.

Lessons learnt from past crises support the necessity to regulate the regulator to ensure that there is effective monitoring and verification of compliance by industry.

However, this is against a backdrop of a reduced workforce of regulators.

The latest Workforce Survey conducted

by CTSI continues to show significant reduction in resource and skill within trading standards services across the UK, with many authorities having limited qualified staff and many heads of service fearful of the future and their ability to deliver the full range of trading standards responsibilities; this would

www.JournalofTradingStandards.co.uk

include obligations as a result of the official controls.

In adopting retained Regulation (EU) 2017/625, Article 78 states that ‘Member States shall ensure that adequate financial resources are available to provide the staff and other resources necessary for the competent authorities to perform official controls and other official activities.’

The landscape for animal health and welfare has changed significantly since the introduction of the Animal Health Act 1981, with multiple pieces of secondary legislation and retained EU law enacted as a result of the Act. Whilst Section 52 places a statutory duty on local authorities to enforce the rules and to appoint as many inspectors and other officers as they deem necessary to enforce the Act, the Animal Welfare Act 2006, having no similar statutory duty, has meant that no funding has ever been extended to local authorities for its enforcement. With funding from central government departments not

always reflecting that changes within the law place new responsibilities on local government, combined with reduced budgets and a loss of qualified officers, it is extremely challenging to implement the requirements of the OCR. With the risks to public health and animal health from the trade in animals and animal-related products, future trade deals with the EU will be reliant on the capabilities of the UK to demonstrate the rules relating to food, feed, animal health and animal welfare are being complied with and effectively policed.

The Chief Veterinary Officers for the devolved nations are clear in their foreword to the UK National Contingency Plan for Exotic Notifiable Disease that the risk of an incursion of exotic notifiable animal disease in the UK remains ever present. So, again the question from the 2019 Symposium arises: ‘With diminished trading standards resources, are we prepared for another crisis’?

We have witnessed from past events the impact of non-compliance in the agri-food sector. The risk of disease incursion or a major food fraud has not gone away. Whilst the OCR ‘regulates the regulator’ and places an obligation on the competent authorities to ensure verification and compliance of the rules by industry, if we are going to be prepared for any future agri-food crises this requires commitment for appropriate levels of resource from both central and local government.

Without sufficient skill and finance available to effectively ensure the obligations placed on the UK as a result of retained Regulations EU 2017/625 are met, we can never fully be prepared for the next crisis. n

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Legal

54 |

By Miles Bennett & Andrew Johnson

Winter 2021

Journal of Trading Standards

Time, please!

This article is based on a Masterclass given at this year’s CTSI Symposium by Miles Bennett and Andrew Johnson, barristers at 5 Paper Buildings. The full Masterclass can be viewed via the CTSI Hub on YouTube There can be very few things more frustrating for trading standards officers, after a detailed investigation into regulatory wrongdoing or scam merchants, than to find a court throwing out a case without even considering the merits because the prosecution was not commenced in time.

How and why does this happen? The law on time limits appears, on the face of it, to be straightforward, yet the courts have had to wrestle with issues related to compliance (or non-compliance) with time limit issues for decades.

A multitude of regulations enforced by trading standards officers contain time limits. This article will look, by way of example, at one: Regulation 14 of the Consumer Protection from Unfair Trading Regulations 2008, which provides:

www.JournalofTradingStandards.co.uk

(1) No proceedings for an offence under these Regulations shall be commenced after – (a) the end of the period of three years beginning with the date of the commission of the offence, or (b) the end of the period of one year beginning with the date of discovery of the offence by the prosecutor, whichever is earlier.

(2) For the purposes of paragraph (1) (b) a certificate signed by or on behalf of the prosecutor and stating the date on which the offence was discovered by him shall be conclusive evidence of that fact and a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved.

| 55

Legal

By Miles Bennett & Andrew Johnson

“If one takes as a starting point that proceedings will be issued within 12 months from the date that a complaint is made to the department, the prosecution will always be within time” The first part – r.14(1)(a) – is the more straightforward. There can be no prosecution for an offence if proceedings are commenced more than three years from the commission of the offence.

It is r.14(1)(B) that gives rise to more complexity. What does ‘discovery’ mean? Who is the prosecutor? Both are frequently asked questions in this potential minefield area.

So, what does ‘discovery’ mean? In Tesco Stores Ltd v. Harrow LBC [2003] EWHC 2929 (Admin) – the so-called ‘Nail in the Bun’ case – the High Court held that the question to ask is whether “the facts disclosed, objectively considered, would have led a prosecuting authority to have reasonable grounds to believe that an offence may have been committed by some person who has been identified to it”.

There may be room for debate as to when that is. If one takes as a starting point that proceedings will be issued within 12 months from the date that a complaint is made to the department, the prosecution will always be within time.

Who is the prosecutor? For these purposes, the prosecutor is not the individual who is authorised to make the prosecution decision. The High Court rejected that argument in R (Donnachie) v. Cardiff Magistrates’ Court [2007] EWHC 1846 (Admin), considering that such an approach would likely have the effect of rendering the time limit irrelevant, because the papers could be kept away from the the prosecutor indefinitely.

Rather, the court held, the prosecutor is the local authority. It is the knowledge attributable to the officers of the authority as a whole that matters.

56 |

Don’t delay An example of the principles in practice is the ‘Nail in the Bun’ case. A consumer bought some bread rolls. There was a piece of metal wire in one of them.

She rang environmental health and asked someone to call her. That day the investigating officer rang the number and spoke to the caller’s partner, who confirmed what had happened and where.

Four days later, the officer spoke to the complainant and took possession of the bun. The information was laid outside a year of the original telephone call.

The Court ruled that ‘discovery’ was the date of the original call. The test to be applied was whether the facts, objectively considered, would have led a prosecuting authority to have reasonable grounds to believe that an offence had been committed by some person who had been identified to it. The only real mystery in this case is why or how the local authority took as long as it did to issue proceedings.

Continuing offences also often lead to argument. But in fact, the position is now

very clear. In Malik [2020] EWCA Crim 957, the Court of Appeal – dealing with Regulation 14 – made the point succinctly.

‘In circumstances where there is an ongoing, continuing offence, the 12 month time limit is not triggered by the first time that the offence occurs, but the last.”

Thus whilst a prosecuting authority cannot extend the time limit by sitting on the papers, a defendant can effectively do so by continuing to offend. That is of particular importance in the context of the Consumer Protection from Unfair Trading Regulations, given the common practice of prosecuting ‘course of conduct’ offences.

How do you avoid pitfalls with time limits? The clearest way in which to ensure proceedings are in time is to ensure they are prosecuted within a year of the first complaint; that approach will avoid any argument as to whether proceedings were commenced within a year of discovery by the prosecutor.

Secondly, keep a checklist of the ingredients of the offence and tick them off (and date them).

Winter 2021

Journal of Trading Standards

be interviewed, but do not allow them to stall the proceedings by not responding.

If an interview cannot be achieved, it is perfectly acceptable to commence proceedings without one. Following these steps will, we suggest, reduce the risk of your cases being time barred.

Thirdly – and perhaps most importantly – do not leave everything to the last minute. Sometimes the time limit can appear to be treated not as a limit, but a target. Many cases in time limit issues are litigated which would not have been if the informations had been laid only a week or two earlier. Whilst an information laid on the last day is as valid as one laid on the first day, waiting until the last minute creates an unnecessary risk.

One particular delay can be caused by waiting for a suspect to respond to an invitation to interview. It is normally right to offer a suspect an opportunity to

“Whilst a prosecuting authority cannot extend the time limit by sitting on the papers, a defendant can effectively do so by continuing to offend” www.JournalofTradingStandards.co.uk

An added complication If time limits did not already cause headaches, the High Court recently added to the difficulties. In Food Standards Agency (FSA) v. Bakers of Nailsea [2020] EWHC 3632 (Admin), it was held that in any offence involving a time limit, an information laid would be a nullity – and thus confer no jurisdiction on a Magistrates’ Court to try the alleged offences – if, when laying the information, the prosecuting authority did not draw the court’s attention to the time limit and explain why they were met.

The decision in Bakers of Nailsea, said to be founded on rule 7.2(3) of the Criminal Procedure Rules, has been the subject of considerable criticism by commentators and, most particularly, a number of District Judges (Magistrates’ Courts). They have had to deal with arguments in subsequent cases that proceedings which were on any view commenced in time could not be continued with simply because the prosecution did not explicitly say why they had been commenced in time.

At least four District Judges (Qureshi, Wright, Fudge and Newton) to date have rejected arguments based on Bakers of Nailsea that prosecutions should be dismissed. District Judge Qureshi referred to it being “A curious question even to raise,” saying (correctly) that “It cannot reasonably be said that the defendants have been prejudiced at all.”

He suggested that the decision might be best viewed in light of the way the prosecuting authority had conducted it, quoting an observation (without naming the individual who made it) that the FSA had demonstrated “a remarkable predilection for forensic self-harm”.

That observation was apt given the FSA had conceded that it had breached the Criminal Procedure Rules before the Magistrates’ Court, sought to withdraw that concession before the High Court, and then sought to argue the appeal by way of case stated on a different basis to that set out in its grounds of appeal.

The general approach taken by District Judges has been to suggest that the part of the High Court’s decision in which they held that the effect of failing to explicitly draw attention to the time was not obiter and not binding; one District Judge went so far as to effectively argue that almost the whole decision was reached per incuriam (without proper consideration of relevant authorities).

Other criticisms made were that the High Court had failed to appreciate the difference between informations and summonses; failed to consider the purpose of rule 7.2(3); and failed to consider a line of authorities on when the breach of a procedural requirement would render proceedings a nullity.

Some of those cases are themselves heading to the High Court. It remains to be seen what shall happen. In due course, there shall no doubt be a clear – and indisputably binding – judgment.

But until then, to do anything other than comply with Bakers of Nailsea would be a recipe for unnecessary legal argument, wasting both time and money.

The course to take is simple. When laying any information for an offence with a time limit, the court should be told two things: what the time limit is, and why it is satisfied. The explanation need not be extensive. A sentence or two should suffice.

But an explanation there must be. n

About the authors

Miles Bennett and Andrew Johnson are barristers at 5 Paper Buildings and specialists in consumer law. For further information visit www.5pb.co.uk

| 57

Last Word

Where would we be without…

Eleni Chalkidou Editor-in-Chief at the Journal of Trading Standards and Director of Communications at CTSI

Difference creates fresh perspectives and new ways of thinking, which will be essential if trading standards is to look beyond its own horizons

58 |

diversity?

Diversity and difference are the lifeblood of a healthy consumer protection system, and should be celebrated

I was recently going through the findings of the CTSI Diversity & Inclusion Survey 2021 and thought to myself that hopefully this will serve as a wakeup call to anyone who works in the profession. I know that the full implications of the data will take some time to be analysed but one scary statistic is that over half of respondents have heard racist, homophobic, sexist or other inappropriate language at their place of work. Enough is enough!

I know from personal experiences – as a woman, as someone who wasn’t born in the UK and as the mother of a mixed-race eight-year-old, how it feels to be at the receiving end of such abuse. None of this should be cause for exclusion,

or even abuse or harassment. Difference should be celebrated.; in fact, being different is a form of superpower. The acronym JEDI (justice, equity, diversity, inclusion) neatly encapsulates this – we are all different, and it is this that makes us a force to be reckoned with, both as individuals and when we work together.

I see trading standards as much more than the profession I work in. It’s my family, and I know that at its heart, trading standards is about people. It exists to protect, educate and convince people that a better society is possible if we all respect each other and look out for one another.

To be effective, it requires emotional intelligence, empathy and the ability to see the world through others’ eyes – to put yourself, for example, in the position of a consumer who has been ripped off.

Since the society that trading standards serves is wonderfully diverse, the profession must be diverse, inclusive, fair and just to reflect that.

This means that at all levels – from trainees at the beginning of their careers up to Heads of Service and those at the very top of the decisionmaking process – trading standards must embrace difference.

After all, difference creates fresh perspectives and new ways of thinking, which will be essential if trading standards is to look beyond its own horizons and make the case that it is not just relevant, but essential, to the functioning of society. As discussed elsewhere in this issue (see cover story, page 16), trading standards needs to do more to attract young, passionate recruits and to keep its existing workforce motivated and inspired. If we don’t, we face the threat of becoming irrelevant and ignored.

So, let’s make the Diversity and Inclusion Survey serve as a line in the sand. We must be honest about the fact there is still much work to be done. The behaviours it exposes should be condemned and left in the past, where they belong. It should give us all a renewed sense of purpose to treat one another with respect and decency, to be positive about what makes us different but to focus on what unites us: a common desire to make society a better place, for everybody. That is, after all, why we are here. n

Winter 2021

Registered charity No 213351

The registered charity of CTSI We rely on your support by way of donations to enable these initiatives

Support Students Achievement Scholarships Valuable OverFunding 70 years Award of suppor Programme t to CTSI Profession and theResearch

Over 70 years of support to CTSI and the profession

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We are extending our funding to those wishing to apply for grants in support of: • encouraging recruitment into the profession • trainee and officer competency and personal development • helping the profession to deliver positive outcomes which show its relevance to corporate agendas and central government policy

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(1) Branch fees are collected nationally. Individual invoices will contain this extra amount where applicable. Current fees vary but in brief, for Full Members these are North Eastern £6.00, London, £8.00, Midland and North Western £10.00, South Eastern £11.00, Yorkshire and the Humber, Scottish, South East Midlands, Northern Ireland and Welsh £5.00. Southern, South Western and East Midlands £ zero. A charge of £10.00 will be included for members of the Business Members Group. Any applicable fee will be taken in the first instalment if paying by Direct Debit (2) For card, cheque or cash payments you must pay by 28 February 2022 to qualify for the discount. To pay by debit/credit card, please contact us on tel: 01268 582228. Regrettably, we are unable to accept card details in written or electronic form. Under current circumstances we would prefer payments to be made where possible by BACS, please use the details on your invoice, and identify the payment using your six-digit member number.

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