I beg to move amendment 129, in clause 234, page 157, line 30, leave out subsection (2).

This amendment would ensure that future “banned practices” are both criminal and civil breaches, reflecting their potential seriousness and putting them in line with all but two of the current banned practices.

This amendment would ensure that future banned practices are both criminal and civil breaches, reflecting their potential seriousness and putting them in line with almost all other current banned practices. As we understand it, under the legislation as drafted, any practice added later by the Secretary of State will not be subject to criminal enforcement. Perhaps the Minister can clarify that, because it is slightly unclear. Given that clause 234 is the means by which the Government are planning to take action on fake reviews, will the Minister confirm his intentions on penalties for breaches?

This is a straightforward amendment that seeks to ensure that future action against fake reviews, or any other unfair commercial practice, is just as robust as the action taken on the face of the Bill. I do not intend to press the amendment to a vote, but I would be grateful for a clarification from the Minister because, during the course of the Bill, we will want to understand the penalties and be clear about those for different practices.

I thank the hon. Lady for her amendment and her remarks. She will be aware that, ordinarily, when criminal offences are created, it is important and beneficial for Parliament to have ample opportunity to scrutinise them. That is usually via primary legislation, rather than powers given to Government. There is, of course, nothing to prevent Members of Parliament from introducing primary legislation to criminalise specific practices in future, should the House consider it desirable to do so. In the meantime, any new practices added to schedule 18 will continue to benefit from the relevant civil penalties, as well as the greater deterrent effect that we expect from the considerable reforms that we are introducing.

On the penalties themselves, we will go much further than any UK Government have ever done before; we are empowering the courts and the CMA to impose fines of up to the higher of £300,000 or 10% of worldwide turnover for infringements of consumer-protection law.

I thank the Minister for his comments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss the following:

Clauses 235 to 242 stand part.

Government amendment 78.

Clauses 243 and 244 stand part.

Clause 234 gives powers to the Secretary of State to amend this chapter. New regulations using the powers may not be made before consultation and will be subject to the affirmative procedure. For example, the power to amend the list of banned commercial practices in schedule 18 will allow the Government to respond more quickly to emerging consumer harms and ensure that appropriate levels of consumer protection are maintained.

The power to amend the list of information deemed to be material in an invitation to purchase means that we can ensure that consumers get the information that they need when they prepare to make a purchase. The power to amend the list of prohibited practices in clause 224(7) will enable the Government to extend private rights of redress to further commercial practices, such as misleading omissions. I hope that hon. Members will agree that it is critical to future-proof the Bill through these provisions, given the constantly evolving environment in which traders operate.

Clause 235 establishes that the Crown is not criminally liable for any infringement of the regulations. This does not affect the application of the regulations in relation to a person in public service of the Crown.

Clause 236 states that a contract or agreement is not void purely because of a breach of this chapter, except for cases where voiding of the contract arises as a result of a consumer exercising their right to redress.

Clause 237 defines “transactional decision”. This is an important and broad definition, which includes decisions before any purchase has taken place as well as decisions after a purchase has taken place.

Clause 238 defines an “average consumer”. It largely restates the equivalent provision from the Consumer Protection from Unfair Trading Regulations 2008.

Clause 239 defines “average consumer” in situations where a group of consumers are particularly vulnerable to a commercial practice. It recognises and makes explicit that consumers may be vulnerable for a range of reasons, including their age, health, credulity and circumstances.

Clause 240 defines “product” for the purposes of this chapter. A product can mean goods, services and digital content. That is important as it means consumers are protected from unfair trading practices when purchasing digital content from businesses online.

Clause 241 defines a range of other terms used in part 4, chapter 1 of the Bill. Clause 242 provides an index of defined terms in this chapter.

Clause 243 revokes the 2008 regulations and re-enacts their substance in part 4, chapter 1 of the Bill. It also makes a small number of consequential amendments to other UK legislation.

Government amendment 78 makes a minor consequential amendment to section 393 of the Communications Act 2003 to include part 4 of this Bill. That will enable Ofcom and the CMA to collaborate in relation to matters covered by part 4 in the same manner that they do for the consumer protection regulations.

Clause 244 sets out that the 2008 regulations will continue to apply to any unfair acts or omissions occurring before this Bill is enacted. The clause also provides that part 4A of the consumer protection regulations, which deals with private right of redress, will continue to apply until new regulations are made under this chapter. I hope hon. Members will accept amendment 78, and I commend the clauses to the Committee.

Clause 234 introduces a provision allowing for the Secretary of State to amend the list of banned practices in schedule 18. The clause will be the route through which we may see later action on fake reviews. The Opposition welcome the flexibility this gives the regime and supports the clause, but I want to ask the Minister one question on changes that can be made.

We have talked about additions, but there is also the power to remove a practice from the schedule. We understand the principle and the importance of the flexibility to add practices, particularly considering the ever-increasing ways that rogue traders can mislead consumers in not only the digital economy, but in the real world. However, I would welcome clarity on the circumstances in which the Government would want to remove a practice from the list and, more importantly, the process it then uses to do so. Will it be subject to similar procedures? It would be helpful to understand that for the record.

Clause 235 exempts the Crown from criminal liability as a result of the provisions in this chapter but does not affect their application to persons in service of the Crown. Will the Minister clarity that Crown exemption?

Clause 236 provides that a contract or any other agreement would not be void or unenforceable due to a breach of the prohibition of unfair commercial practices or the promotion of unfair commercial practices. We recognise that the clause is necessary to ensure that contracts or subscriptions can continue at the wish of the consumer in spite of breaches under this chapter, and we therefore support it.

Clause 237 defines “transactional decision” for the purposes of this chapter. We welcome the clause and the broad definition it introduces. The explanatory notes state that a transactional decision could include, for example, a decision to travel to a shop as a result of a commercial offer, a decision to agree to a sales presentation by a trader, or a decision to click through to a website as a result of information relating to the product. A whole range of purchasing decisions along the consumer journey will fall under this broad and effective definition, allowing for more consumer protection.

Clause 238 defines the meaning of “average consumer” for the purposes of this chapter. As the Minister outlined, the average consumer is defined as reasonably well-informed, observant and circumspect. We particularly welcome subsection (3), which sets out that the average consumer cannot be expected to know when a trader is hiding something from them. That is important, because anyone can be duped by someone hiding information from them. We support the clause.

Clause 239 describes consumers who may be defined as vulnerable persons for the purposes of this chapter. This is really important. Subsection (4) sets out that consumers may be considered vulnerable due to

“their age…their physical or mental health” or

“the circumstances they are in.”

The Minister outlined some of the context, including that elderly consumers may be more vulnerable to certain practices, such as pressure selling, because of their age. We could even find that younger people are more vulnerable to unfair practices because they do not have the experience to judge products. The clause also covers consumers affected by a serious illness and so on. The explanatory notes expand on the phrase

“the circumstances they are in,” stating that it includes things such as being in mourning, going through a divorce or losing a job.

We welcome the clause. It is important that we have some considered protection from unfair practices for those who are likely to be more vulnerable. However, that should not lead to unnecessary delay in decisions being made. I came across someone recently who had sadly lost her husband. She wanted to make some transactional changes and was considering selling the family home and moving somewhere more appropriate for her. She had just a little bit of a struggle and was told that she was considered vulnerable, but at the time she really did know what she needed and wanted. We should consider how the clause may be interpreted and implemented so that it does not lead to an unintended outcome that could cause further distress.

Clause 240 defines “product”, for the purposes of this chapter, as goods, a service or digital content. We welcome the clause.

Clause 241 describes how terms are to be read for the purposes of the chapter, including “business”, “code of conduct”, “goods” and “supply”. Having those definitions is extremely helpful not just for traders, but for the consumers for whom this legislation is really intended. Clause 242 provides an index of defined terms for the purposes of the chapter.

Finally, we welcome clause 243 and we support amendment 78. Clause 244, which we also support, sets out how the chapter applies to an act or omission that occurs on or after the commencement date of the chapter.

I think the hon. Lady asked two questions, and I missed the second one. While she is thinking about what the second question was, I will address the first one, which was about why we are establishing the power to delete practices from the banned list. That is because some practices may become redundant or have needless duplication that we need to avoid. For example, Parliament may choose to provide for regulation elsewhere to better address a particular service so that we do not get duplication. The power will require parliamentary approval through the affirmative procedure. As a consequence, there will be a requirement for us to consult on any such changes.

I think the Minister was referring to my second question on the meaning of average consumers and vulnerable persons. Rather than wanting any changes, I wanted him to recognise that someone’s circumstances can lead to an over-assumption of their vulnerability, and an interpretation of that vulnerability can make it more difficult for those who really do know what they want, even though they are in those circumstances.

The hon. Lady makes a very good point. Regulators play a part in this as well by ensuring that the average consumer is assessed correctly and that there is relevant assessment of any characteristics. Businesses can be challenged on the back of that to ensure that they do not exploit consumers, especially those who are vulnerable to a particular commercial practice.

Question put and agreed to.

Clause 234 accordingly ordered to stand part of the Bill.

Clauses 235 to 242 ordered to stand part of the Bill.