PUBLIC BODIES ACT CONSENT MEMORANDUM THE PUBLIC BODIES (ABOLITION OF THE NATIONAL CONSUMER COUNCIL AND TRANSFER OF THE OFFICE OF FAIR TRADING’S FUNCTIONS IN RELATION TO ESTATE AGENTS ETC) ORDER 2014 Draft Public Bodies Act Consent Motion 1. The draft motion, which will be lodged by the Minister for Energy, Enterprise and Tourism, is: “That the Parliament consents to the making of The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014, a draft of which was laid before the United Kingdom Parliament on 5 December 2013 and which makes provision which would be within the legislative competence of the Parliament if it were contained within an Act of that Parliament.” 2. This Memorandum has been lodged by Fergus Ewing, Minister for Energy, Enterprise and Tourism, in accordance with Standing Orders under Chapter 9BA. Background Public Bodies Act 2011 3. The UK Public Bodies Act 2011 (“the 2011 Act”) gives UK Ministers the authority (via order making powers) to abolish, merge or transfer the functions of public bodies listed in its schedules, and some of those bodies operate in both the reserved and devolved areas. Section 9 of the 2011 Act acknowledges the scope for effects on devolved interests by requiring Orders that include provision falling within devolved competence to be consented to by Holyrood. 4. Standing Orders include the process for scrutinising PBACMs at Chapter 9BA. National Consumer Council, Citizens Advice Scotland and Office of Fair Trading 5. As part of its consumer landscape reforms, the UK Government announced in October 2010 that it planned to abolish NCC (a cross border public authority known by the operating name of Consumer Focus and, latterly, Consumer Futures) and transfer its functions to the Citizens Advice service (Citizens Advice Scotland and Citizens Advice). It also announced that it planned to abolish OFT, passing some of its consumer functions to other bodies. 6. Citizens Advice Scotland (CAS) is the national umbrella organisation for Scottish Citizens Advice Bureaux. Its statutory name is the Scottish Association of Citizens Advice Bureaux. It is an independent charitable membership organisation and a cross border public authority under the Scotland Act 1998. The bulk of CAS funding comes from the UK Government, while individual bureaux are largely funded by local authorities. Citizens Advice is the equivalent body for England and Wales. PBCM(S4) 8.1 1 Session 4 (2013) UK Government reform proposal 7. Consumer protection is reserved to the UK Government. Its consultation Empowering and Protecting Consumers (June 2011) proposed reform of the consumer landscape in order to reduce its perceived complexity. Plans included giving responsibility for consumer advice to CAS and Citizens Advice and abolishing OFT. Implications for Scotland 8. The responsibility for delivery of statutory reserved functions relating to consumer advice, advocacy and education in Scotland will transfer from Consumer Focus Scotland (part of Consumer Focus) to CAS on April 2014, although CAS has already taken on general consumer functions (since April 2013). Functions include work in relation to regulated industries in the energy, post and (devolved) water sectors which will not transfer until April 2014. In addition to conferring functions on a cross border public authority, the Order makes consequential amendments to devolved legislation which make reference to the National Consumer Council and also to the Housing (Scotland) Act 2006. The changes are not anticipated to affect the practical delivery of consumer protection policies in Scotland. The draft The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 9. The Department for Business, Innovation and Skills is promoting the NCC Order under sections 1(1) and (2), 5(1)(b), 6(1), (2) and (5) and 35(2) of the 2011 Act. The NCC Order will abolish the NCC and transfer functions to CAS and Citizens Advice. It also transfers functions of OFT in relation to the regulation of estate agents. The provisions in relation to conferring functions on CAS and amending devolved legislation require the consent of the Scottish Parliament as they would be within the legislative competence of the Scottish Parliament if contained within an Act of that Parliament. Scottish Government position 10. The statutory functions being transferred to CAS are ones currently carried out in Scotland by Consumer Focus Scotland (now called Consumer Futures) so there are not anticipated to be any major changes to the functions, except in so far as they will be subject to future work plans of CAS. A consultation on this will be carried out by CAS in January 2014. The consequential changes to Scottish legislation will replace NCC by CAS (and OFT by Trading Standards) where appropriate and therefore will not change the policy intent behind the Scottish legislation. Consultation 11. Section 10 of the 2011 Act requires the UK Minister proposing an Order to consult on the proposed changes. The UK Government consulted on its proposals for consumer landscape reform in Empowering and Protecting Consumers (June 2011). A number of stakeholders in Scotland expressed the view that it would be better to retain an independent consumer advocacy body, but this was not accepted by the UK Government. CAS supported the UK Government’s proposals to transfer consumer advocacy to the Citizens Advice service. 2 Financial / Resource Implications 12. There are no financial or resource implications. Conclusion 13. The Scottish Government invites the Parliament to consent to the making of The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014, a draft of which was laid before the UK Parliament on 5 December 2013. Scottish Government December 2013 3 ANNEX A Draft Regulations laid before Parliament under section 11 of the Public Bodies Act 2011, for approval by resolution of each House of Parliament, after the expiry of the 40-day period referred to in section 11(4) of that Act. DRAFT STATUTORY INST RUMENTS 2014 No. XXXX PUBLIC BODIES The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 Made - - - - *** Coming into force in accordance with Article 1(2) to (6) The Secretary of State makes the following Order in exercise of the powers conferred by sections 1(1) and (2), 5(1)(b), 6(1), (2) and (5) and 35(2) of the Public Bodies Act 2011(1) (―the Act‖). The Treasury have consented to the making of this Order in so far as their consent is required by section 6(4) of the Act. In accordance with section 8 of the Act, the Secretary of State considers that this Order— (a) serves the purpose of improving the exercise of public functions, having had regard to the factors set out in section 8(1); and (b) does not remove any necessary protection or prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise. The Scottish Parliament has consented to the making of this Order in so far as its consent is required by section 9(1) of the Act. The consent of the Northern Ireland Assembly has been obtained in accordance with section 9(3) of the Act. The Secretary of State has consulted in accordance with section 10 of the Act. The National Association of Citizens Advice Bureaux and the Scottish Association of Citizens Advice Bureaux have consented to the transfer of functions made by this Order in so far as their consent is required by section 21(1) of the Act. (1) 2011 c. 24. 4 A draft of this Order, and an explanatory document containing the information required in section 11(2) of the Act, have been laid before Parliament in accordance with section 11(1) of the Act after the end of the period of twelve weeks mentioned in section 11(3). In accordance with section 11(4) of the Act, the draft of this Order has been approved by a resolution of each House of Parliament after the expiry of the 40-day period referred to in that provision. Citation, commencement, interpretation and extent 1.—(1) This Order may be cited as the Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014. (2) This article comes into force on the day after the day on which this Order is made. (3) Subject to paragraph (4), articles 2, 3 and 4 of this Order come into force on 1st April 2014. (4) Article 3(1)(g) and paragraph 14 of Schedule 1 (repeal of reference to the National Consumer Council in Schedule 1 to the Public Bodies Act 2011) come into force on 2nd April 2014. (5) Subject to paragraphs (6) and (7), article 5 of this Order comes into force on 31st March 2014. (6) Article 5(3)(a)(ii) and paragraph 6 of Schedule 2 (repeal of reference to the Office of Fair Trading in Schedule 5 to the Public Bodies Act 2011) come into force on 1st April 2014. (7) Paragraph 16 of Schedule 2 (provision of information to the lead enforcement authority by the OFT) comes into force on the day after the day on which this Order is made. (8) An amendment or repeal made by this Order has the same extent as the enactment to which it relates.