Trading standards and the Enterprise Act

Several people have told me their requests for information are being blocked by Part 9 of the Enterprise Act 2002. This section of the act restricts disclosure of information about individuals and businesses. Councils are citing the law in their refusals to give the public information about rogue traders, fraudulent business and even restaurant inspections.

The Scottish Information Commissioner has stated that many local authorities want to release information because it is clearly in the public interest, but are concerned that this part of the Enterprise Act makes such disclosure a criminal offence. The Commissioner says:

‘I have obtained legal opinion from senior counsel, which states that Part 9 of the Enterprise Act does not constitute a prohibition on disclosure. This is contrary to the view taken by the Department of Trade and Industry and the Department of Constitutional Affairs.’

The Scottish Commissioner had not yet issued any decisions in relation to Part 9, but he says they are imminent so check his website for more details.

Proposed changes to the Enterprise Act under the Company Law Reform Bill may also amend the restrictions of the Enterprise Act. Until the situation is clarified on the Enterprise Act, I suggest you challenge any refusals by referencing the section of this law that states it does not prohibit the disclosure of information ‘held by a public authority to another person if the disclosure is required for the purpose of a Community obligation’(section 240).

The community obligation is similar to the public interest. The law also says that a public authority can disclose information to the public ‘for the purpose of facilitating the exercise by the authority of any function it has under or by virtue of this Act or any other enactment’ (s. 241(1)). In this case the public authority has an obligation to uphold the FOIA.

5 Responses to “Trading standards and the Enterprise Act”

  1. Nick Evans says:

    Heather, I’m not sure if you’ve taken legal advice on the meaning of s.240 of that Act, but “Community obligation” isn’t really the same thing as “public interest”. A Community obligation is an obligation under any of the treaties that establish the European Community, including all the European Directives and Regulations. This is set out in Schedule 1 to the European Communities Act 1972, which is one of the few pre-1991 Acts that is freely available on-line: http://www.opsi.gov.uk/acts/acts1972/20068–d.htm#sch1

    So you’d need to point to an EC obligation requiring disclosure. The data protection and environmental information regimes are your best bet here.

  2. heather says:

    Thanks for that. I’ll take a look.
    There certainly ought to be an element of public interest in the community obligation. But I take your point that there is little importance placed on the right of the public to information at the European level.

    Any lawyers out there who would like to wade in?

  3. A TSO says:

    You are also likely to be harangued by the business sector if they think their dirty washing is going to appear in public.

    At the moment you have the Scottish Information Commissioner saying one thing and the DTI (one of Trading Standards controlling bodies) saying the other.

    Scottish law is different and no English TSD is going to risk revealing information unless there is a clear statement
    as to the legal position (especially as it is the individual officer who would be prosecuted (and probably sued by the business, not the Authority

  4. A TSO says:

    As far as I can see, the Company Law Reform Bill only relaxes Part 9 to allow the release of information for the purposes of actions in the Civil Courts.
    The Intellectual property industry has had a role in driving that through, because TS felt that they could not release details of seizures or actons under the criminal part of the Trade Marks Act so that the TM holders could take civil action.

  5. Natalia says:

    Does anyone know the position on whether a company can issue a “warrant of disclosure” on another business, if it has suspicion to believe this company is behaving illegally?

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