Part of Digital Markets, Competition and Consumers Bill – in a Public Bill Committee at 2:00 pm on 4 July 2023.
Seema Malhotra
Shadow Minister (Business, Energy and Industrial Strategy)
2:00,
4 July 2023
Clause 229 introduces provisions setting out the conditions under which it would be a criminal offence for a trader to engage in an unfair commercial practice of a kind prohibited by clause 217. The Minister outlined what those practices would be: a misleading action, a misleading omission, omission of material information from an invitation to purchase, and so on. The clause also makes every practice listed in schedule 18 a criminal offence, apart from using editorial content in the media to promote a product where it is not made clear that it is a paid-for promotion, or including in an advert a direct appeal to children to buy advertised products.
The Opposition recognise the importance of making unfair practices criminal offences and support this clause. However, why does the legislation specifically make two practices in schedule 18 not subject to a criminal offence?
Clause 230 provides a range of potential defences for an offence charged under clause 229. We recognise the need for a defence of due diligence and therefore support this clause. However, we would welcome further explanation from the Minister regarding subsection (1), which specifically outlines that it is a defence for the trader if the offence was “a mistake or accident”. I just wonder whether there is any more guidance regarding what the bar or threshold is here, and about how individuals and businesses will be required to prove that an offence occurred as a result of a mistake or accident.
Amendment 72 ensures that the defence provided for under clause 230(1), the defence of due diligence, does not apply in relation to an offence under clause 229(4). This replicates the current position under the Consumer Protection from Unfair Trading Regulations 2008. We welcome this common-sense amendment, and we similarly welcome amendment 73.
Clause 231 sets out that where a body corporate commits an offence with the consent of an officer of that body, both the officer and the body corporate can be prosecuted and punished. This also applies if the offence is attributable to neglect on the part of the officer. We welcome this clause because it ensures that all those responsible for an offence that has a detrimental impact on consumers are subject to being held accountable and to action as a result of that offence.
Amendments 74 to 77 ensure that the imposition of liability on another person does not apply to an offence under clause 229(4). This replicates the current position under the Consumer Protection from Unfair Trading Regulations 2008. Assuming that this is consistent with the current legislation, the Opposition of course support this amendment.
Clause 232 sets out the penalty for offences under this chapter, and how a person guilty of an offence is liable to a fine or imprisonment for a term not exceeding two years. We support this clause.
Finally, clause 233 outlines the time limits for prosecution under clause 229, with a prosecution needing to begin within three years of an offence, or within one year of the offence being discovered by the prosecutor. We support this clause, although is the Minister confident that within a year of discovery will be long enough, particularly considering the current resourcing pressures on our prosecution and justice systems? He may have confidence, and of course we do not want to lengthen the timescales, but how will he know how many prosecutions are missed due to running out of time?
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