the Registrar to go behind your backs and start the process of being in the position of fining your members without lawful authority, or outside of a court of law? It appears he wants to introduce a Statutory Instrument (SI) to do this.
Let us say right from the outset, what has been set in train is nothing short of betrayal. At best we represent less than half of the ADI's on the register, and now if this goes all the way and the Minister, in his infinite wisdom decides to make the CoP prescriptive, it is feared that none of us will have any hope of making any representations to have it rescinded or to have any amendments made to it.
If the registrar does try to use this legislation he will need to persuade the Minister to include the new 'AGENCY' (whatever name it takes on) in the list of ENFORCERS, as currently neither the DSA, VOSA or the DfT are on the list of authorised enforcers. There are 10 nominated Trading Standards areas and the OFT, plus the list of people in Annex B of the above document.
The document suggests that these enforcers should be the second port of call, the first being the business, to remedy the issue, albeit Civil Sanctions can run alongside existing powers both civil and criminal.
It provides four options:
a) Do nothing;
b) Collective actions to claim compensation;
c) National Roll out of Civil Sanctions;
d) Pilot Programme.
To establish Best Practice and to establish a fines procedure the Pilot Programme needs to take place (Government preferred option). The CoP is not a best practice document, so therefore what has been put forward will still need adjustment but it is doubted if it will come to the Associations, especially as this whole process is now up and running so is in place.
It talks about a Consumer Advocate who takes court actions for collective offences if he/she can't persuade informal resolution. Not the kind of thing a one man/woman band would be involved with?? In any event this Advocate needs to establish an offence has been committed and the proof is to the criminal standard - Beyond any reasonable doubt. This is replicated in the Consultation Document, as is the below (without the monetary indications). Would driving schools or Non ADIS who run companies, come under this banner? It doesn't look like it according to Annex "C" of the consultation!! If the Advocate says it has, then the maximum penalty that can be imposed is up to £3,000!!!
There would be processes which would need to be complied with that are similar to the Transport Tribunal by way of setting out the offence; getting a response; putting up a defence and then having a hearing (in writing). There are also time scales that are to be complied with. If there are recurring offences then it is possible that a Variable Monetary Penalty (VMP) could be around £5,000, on top of restitution or compensation, if the business refuses to compensate voluntarily, there is a maximum cap of £10,000, plus 1% of annual turnover!!! It gets worse! If the sums of money exceed £500,000 the OFT will step in and adjudicate. OK, so you say this is not going to happen. You may be right, but this could so easily be used against the likes of the bigger driving schools who are using sharp practices, such as Bill Plant who has had a recent adjudication made against them, and of course we all know of others who have also had their knuckles wrapped in the past.