Imaginative media spin on a non-event?

Supporters of consumer protection have been alarmed at reports suggesting that the Government is to tell local councils not to enforce aspects of weights and measures law.  Can this really be true?

Various newspapers and broadcasters have reported alleged comments by Secretary of State John Denham that he intends to “introduce new guidelines within months that would prevent local authorities from taking traders to court” (for offences connected with using illegal scales, and weighing and pricing in illegal measures). See for example BBC report http://news.bbc.co.uk/1/hi/uk/7677438.stm.

In fact this report makes little sense. Mr Denham cannot change a law that has been passed by the UK Parliament, nor can he require Trading Standards Authorities (TSAs) not to enforce it. Indeed the existing guidance to TSAs, which is issued by the Local Authorities Co-ordinators of Regulatory Services (LACORS) in consultation with the Mr Denham’s Department (which can be downloaded from http://www.lacors.gov.uk/lacors/ContentDetails.aspx?id=17089), already recommends that enforcement action should be “proportionate”. See for example, paragraph 3.1:

“3.1 Local Authorities must continue to demonstrate their commitment to consistent, proportionate action to ensure that those remaining traders who continue to trade in imperial units through ignorance of the law or misleading media coverage, do convert to selling in metric units, and to ensure that cohesive action is taken over any remaining high profile traders who refuse as a point of principle to comply.”

The debate, of course, is about what constitutes “proportionate” action, and the LACORS guidance makes it clear that prosecution should be a seldom used last resort. It is difficult to see how any new advice (whether from LACORS or the Government itself) could go any further in discouraging prosecution without actually telling them not to enforce the law.

With regard to the legality of non-enforcement, the LACORS guidance continues:

“3.6 Authorities are advised to have regard to the provisions of Counsel’s Opinion in relation to the duty to enforce. The relevant points provide that Local Authorities may not decline to perform their statutory duties under the Act, thus, whilst they enjoy discretion whether or not to prosecute in an individual case, that discretion may not be used to justify a general policy of non-prosecution and must be exercised reasonably. The Code for Crown Prosecutors advises that prosecutors must not be affected by improper or undue pressure from any source and Counsel advises that the exercise of the discretion not to prosecute, principally in order to avoid potential political difficulties, might well amount to “improper” or “undue” pressure.”

So local Councils may not have a policy of non-enforcement, and the Secretary of State cannot legally encourage Councils not to enforce the law.

Perhaps the most charitable interpretation is that Mr Denham was caught off guard and made some ill thought-out, populist remarks, leaving his civil servants to try to limit the damage.

UKMA will be writing to Mr Denham seeking clarification of his alleged comments and inviting him to confirm that he does not condone law-breaking or failure to enforce the law.

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