Margot James an ex-Minister for consumer rights (how fast they come and go) got it about right when she said ‘when we leave the EU we will be leaving a system of consumer rights and protection..which sits very well with the needs of consumers in the United Kingdom.’ The House of Lords European Union Committee took her up on this to ask the question whether this will be the case post-Brexit? The Government says yes pointing to what was then called the Great Repeal Bill which “will preserve the relevant EU (consumer protection) law ….It will help ensure that UK consumers’ rights continue to be robust after we have left the EU”. This is the ‘Lift and Shift’ approach whereby we just take into our law a good and effective body of EU law that protects consumers well.
Good and Better
The UK can claim credit for helping create this body of law. Indeed in many cases UK law has gone beyond what was agreed at EU level. In some cases we were ahead of the game with laws we already enjoyed here inspiring later EU action. One simple example of ‘better in Britain’ quoted by Pete Moorey Head of Campaigns at Which? was that in Britain we can reject a product for up to 30 days if there is something wrong with it. Under that Directive at EU level, that is limited to 14 days”. As an example of how UK experience and expertise influenced EU law, Lewis Shand Smith the chief Exec of Ombudsman Services referred to what the report calls the ‘specific UK influence over the creation of the legislation introducing Alternative Dispute Resolution for consumer disputes”. Again, a proposed Directive on digital content draws heavily on the Consumer Rights Act passed here in 2015.
So that’s alright then?
Not really. The issue that worries consumer organisations and others like the Trading Standards people and national regulators like the Competition and Markets Authority is the maintenance of the infrastructure that unites and informs consumer protection action across all the markets of the EU. One example quoted of successful European-wide co-operation was the agreement by five leading EU car rental companies to introduce four improvements in their service addressing consumer problems like whether you need that extra (and bloody expensive) insurance. Standards organisations although standing outside the formal structures of the EU, aim to harmonise standards and so reduce non-tariff barriers to trade across the 34 member countries so we must keep a seat at that table. It would be a very good idea to maintain consumer safety and stay part of the food safety regulator as well as medicines and aviation agencies.
Is your NEB stuck at the border?
How do we stay up to date and in line with new regulatory ideas and actions after we leave the EU? What happens when UK standards conforming to the European ones clash with those of another trading partner eg the elephant on the block the USA with its chlorinated chickens and hormone-fed beef. What happens when our wonderfully named NEB (national enforcement body) e.g the CMA can no longer rely on the cross-border enforcement system established under the Consumer Protection Cooperation (CPC) Regulation?
The Minister told the Committee that “the Government was keen to assure everybody that there will be no dilution (of consumer protection rights) on account of our leaving the EU.” The question that goes unanswered is how can we maintain access to the mechanisms that make it happen across the whole EU? Nothing is ‘absolutely guaranteeable’ (the Minister’s words) when it comes to the new reciprocal relationships. The bodies who need those relationships to develop policy and enforce the law are feeling the pinch with resources being squeezed already. How hard is life going to be post-Brexit? Certainly as the Financial Conduct Authority said, it will “involve some very hard choices”.
“Brexit: will consumers be protected?” by the European Union Committee of the House of Lords published 19 December 2017. HL Paper 51