Consumer Scotland Act 2020: A Detailed Overview

On the 6th of May, the Scottish Parliament passed the Consumer Scotland Bill 2020, which was given Royal Assent and effectively enacted into law on June the 9th, 2020. The Act is primarily designated to set a new body called Consumer Scotland and outline its role and function in the consumer regulatory landscape in Scotland. This article provides an overview of the substantive law covered in Part I and Part II of the legislation.

Part I: Consumer Scotland

Part 1 of the Act details general and specific provisions on the functioning of the new agency. Most importantly, Consumer Scotland Act 2020 establishes under Section 1(1) a body corporate known as Consumer Scotland (from hereon CS).

Sections 2 to 7 provide for general and specific functions of the newly established agency. Section 2 states that CS will have the general function of providing consumer advocacy and advice to the effect of:

• reducing harm to consumers

• promoting confidence among consumers when dealing with businesses that supply both goods and services

• enhancing the extent to which public authorities consider consumer issues

• promoting sustainable consumption of natural resources and other practices aimed at supporting environmental sustainability in relation to obtaining, the consumption and use, and disposal of goods by consumers in Scotland

• advancing inclusion, fairness, prosperity, and other aspects of wellbeing in Scotland.

In carrying these general functions, the CS shall have regard for several specific functions detailed under sections 3 to 6. Per section 3, 4, 5, and 6, it shall carry out functions related to representations, research and investigation, information, and recall of goods functions, respectively.

Section 3 details the representative function. It is stated that CS shall provide advice, information, make proposals on consumer matters and represent consumers’ views and matters to Scottish Ministers or any Ministers or government departments, local authorities, regulatory bodies, or any other persons acting in the public field whom the CS might consider to have an interest in consumer matters.

Section 4 describes the research and investigation function and provides that CS shall obtain, analyse, and review information about consumer matters, consumer views, or any information of relevance as advised by Scottish minsters by regulation. CS shall also investigate into sectors and practices deemed harmful to consumers, or any other investigation that shall support the carrying out of its general functions.

Section 5 gives CS the power to provide or secure the provision of advice and information to consumers about itself and its functions, and information about consumer matters on a general or individual level. In exercising this function it may publish, or make available by other means, information it deems appropriate to be brought to the attention of the consumer, as well as support financially or through other means, facilitate or coordinate the activities of other persons.

Section 6 on the recall of goods function, places a duty on the CS to establish and operate a publicly available database of recall of goods in Scotland which it considers to be major (by a standard of significant risk posed to individuals or the scale of the recall). It has the discretion to take further steps as it considers appropriate to provide or secure the provision of information to consumers about such recalls. CS can also facilitate or coordinate the activities of other persons.

Subsection 4 of Section 6 clarifies that recall of goods shall cover for situations where, instead of goods being taken away from a consumer, corrective measures were being taken in relation to them.

Section 7 places a statutory requirement on the exercise of its functions. Particularly, under subsection 2 it mandates that CS coordinate its activities according to a work program provided for in section 14 of the Act. Thus, it is required of the agency that every year, beginning with April 1st, to publish and present the Scottish Parliament, a document (the so-called “forward work program”).

The work program must include a statement of the main priorities to be achieved within a year with respect to vulnerable consumers, a general description of its general and specific activities or investigations concerning vulnerable consumers. Similarly, it will provide for other priorities in relation to consumers at large which are not part of its routine activities. The work plan must be drafted taking into account the needs and interests of consumers, or any other persons or organisations with an interest in consumer matters.

Section 7 includes other general provisions concerning the functions of the CS, and section 8 clarifies that the Act does not impose a duty to exercise any of the said functions on behalf or on the requirement of an individual consumer.

Section 9 offers a detailed provision on the requirement to provide information to CS on a person who was served with a notice requiring the disclosure of information for the purpose of enabling CS to effectively carry its functions. Under subsection 2 it is listed a series of persons to whom the provision applies.

Per section 10, if a “designated regulator” fails to comply with the requirement in section 9, a written statement giving reasons for their failure must be provided. Moreover, section 12 provides for enforcement to comply by way of a court order granted by the Court of Session.

In addition to the accountability provisions set out in section 14, section 15 and section 16 place a duty to publish reports of its findings following any undertaken investigation, as well as publish annual reports at the end of each year and lay them before the Scottish Parliament and the Scottish Ministers.

It is also required, under Section 17, that a consumer welfare report be prepared and published at the end of each reporting period, detailing how well the consumers' interests are being served in Scotland and where and how most harm is being caused to consumers interests, having particular regard for the most vulnerable ones.

Lastly, section 19 requires that an independent expert individual or body shall be appointed every year to review and report on the performance of CS during the period, and section 20 grants power on the Scottish Ministers to modify the functions of the CS through the enactment of a statutory instrument, after having consulted the CS and the Scottish Parliament

Part II: Consumer Interest

Part 2 of the Act makes provisions regarding consumer interest. Section 21 places a duty on public authorities to have regard to consumer interest when making any strategic decision regarding the exercise of its functions. In this respect, section 22 allows CS, having secured the approval of the Scottish Ministers, issue guidance concerning the duty in section 21. A public authority, having been served with such guidance, shall have regard for it and publish (no later than 12 months following the expiry of the period to which it relates) information on steps taken to comply with the duty under section 21.

Conclusion

The Consumer Scotland Act 2020 was mainly enacted to create a new governmental agency in Scotland that shall oversee that provision of goods and services in Scotland is carried in a manner best benefiting the consumers, namely the most vulnerable ones. The Act is rather short, being covered in only three parts and thirty sections. Part I establishes Consumer Scotland, defines its function, and details the scope of its powers and duties. Part II on consumer interest places a duty on public authorities to carry out their activities and policy agendas in a manner that will not infringe upon the interest of the consumers at large and having particular regard of the vulnerable consumers. Part III offers details about how the provisions of the Act is to be interpreted.

It is likely that the provisions of the Act will be further finessed and clarified through the enactment of Statutory Instrument, given that certain sections, particularly section 2 on the function to promote sustainable acquisition, use and disposal of goods by consumers, as well as the role to promote inclusion, fairness, prosperity and wellbeing. Such statements are open to wide interpretation; nonetheless, it is hoped that once it begins its mandate the yearly work programs shall fill in these gaps and will bring greater clarity regarding the specific targets that the agency will set to achieve trough with action plans.