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11 October 1999

Which side is Which?

The Consumers' Association was founded to defend the individual against big business. Richard Colbey

By Richard Colbey

When Argos announced last month that it would not be honouring the offer it had inadvertently made on its website to sell televisions for £3, there was no shortage of legal pundits speculating on whether it could escape liability. Most concluded that this was an area of uncertainty just ripe for a test case. Only the Consumers’ Association seemed sure what the outcome will be. “The customers would have known that televisions would not sell for £3, so the contract is void,” one of their lawyers pronounced to the press.

The CA’s lawyer may in due course be proved right, but that is hardly the point. Trade union leaders do not normally announce that the law actually makes it easier to sack people than most employment lawyers believe. The NSPCC has not been telling the press that actually parents may legally whip their children. It would be normal behaviour for the CA, as a campaigning organisation, to puff the arguments up a bit in consumers’ favour.

The Argos affair is, however, but one instance of the CA bizarrely advocating against the consumer. In the edition of Which?, its flagship publication, that was in circulation when the Argos story broke, it had said that a supermarket customer charged more at the till for an item than the price that appeared on the shelf had no redress in civil law. This was an elementary error caused by someone overlooking the law of misrepresentation. Once again the mistake was against the consumer.

More worrying is the rubric that accompanies the mark of approval Which? gives to certain on-line shopping sites. “If anyone’s credit card details are exploited through an on-line transaction with a Which? Web Trader, the CA will ensure they don’t lose out.” Thus it perpetuates the myth that by giving out one’s credit card details on the net – or anywhere else – one might be liable if someone else cons money out of the card company by using that number. While in theory consumers can be required to pay up to £50 if the card itself is stolen, no one has ever been ordered to pay a penny where it is merely the card number that is used. Instead of using its position to try and destroy the myth, the CA shamelessly plays on it as a marketing device.

Credit companies would like people to believe there is a potential liability in this situation, just as retailers would hope to discourage claims from customers promised goods at incorrectly stated prices. The CA, which has, among other things, set up as a credit card provider and retailer not only of its own books but of general household items (purportedly non-profit making), is hopelessly compromised in advising the public. The simplest and most effective advice to give to any consumer in dispute with a credit card company is to refuse to pay the bill. That approach is anathema to card companies, which encourage a culture where customers believe their bills are written in tablets of stone. Not surprisingly, the CA has never given effective advice to customers on this point, and there is little in its pronouncements that differ from any bank’s statements.

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As if it had not already found enough ways to surrender its independence, the CA has recently launched a television programme on a Sky channel. Inevitably any consumers’ organisation will from time to time consider the activities of Rupert Murdoch and News International. It may be that the CA would conclude that there is never any need to call for any restraint on his media empire and that he has benefited consumers. However, if it does come to this view and does not voice condemnation when, say, another major sporting event is lost by terrestrial television, inevitably the suspicion will be that it has become reluctant to criticise a business partner.

As the CA’s business empire grows, one would expect to see the profits ploughed back into producing a high-calibre core product. Sadly that is not the case. Which? has improved over its 42 years in the quality of its layout, but not in its content. Only the lack of advertising – the only one of its original tenets it appears to have respected – distinguishes it from any other middle-brow monthly publication. Real analysis is sacrificed for sound-bite-length stories. Prolonged testing with a view to providing serious advice on the best choice is now the exception rather than the norm.

The emphasis tends to be on cheaper products: wine, washing powder and kitchen gadgets under £20 all feature in the latest edition. The only remotely high-budget research was on folding bikes, with just seven – a small proportion of the market – being tested. A piece on four new washing machines, each described in a few lines, was meaningless without any comparison with the dozens of others available.

The research is often sloppy. In a recent edition I noticed that when advising on holiday spending it failed to mention the only credit card – Liverpool Victoria’s – that provides commission-free foreign transactions. In the same edition, dealing with Internet service providers, it omitted the provider – Public On Line – whose service is free and which does not charge a premium rate for technical help calls.

These just happen to be two businesses I had discovered with very little research. Who knows what other errors and omissions there are?

The CA has a unique position. There is no other non-governmental organisation that claims to represent consumer interest, and since everybody is a consumer there is an overwhelming public interest in a strong, independent advocate of consumer rights. The need is compounded by the notorious ineffectuality of official organisations intended to represent consumers.

The National Consumer Council has never sought to become a major campaigning body and lacks the funding to take on such a role. The Office of Fair Trading is strong on high-profile statements against shoddy trade practices but very poor at translating them into action. The director-general John Bridgeman’s recent high-profile “we are getting tough on estate agents” claims were echoes of speeches he has made before. We can expect the number of complaints against that profession that lead to action by the OFT to remain at around 3 per cent until the political will is found to tackle such problems.

Statutory utility regulators likewise inspire little confidence. The low point came last year when Ian Byatt of Ofwat approved a manifestly illegal scheme by water companies to cut off supplies of bill defaulters. Six local authorities, concerned about the health hazards such action would cause, had to apply with some urgency to the High Court.

The CA has been around a lot longer than the OFT and statutory regulators. It started in 1957 as a genuine grass-roots movement, set up by people concerned that the consumer society was growing in a way that disempowered the individual. They believed a forum for consumers to exchange information would go some way towards redressing the balance. The association’s growth to nearly a million members – one joins by subscribing to any of the Which? publications – and an annual turnover approaching £50 million is an enormous achievement.

Official approval was accorded it last month when the government granted it the power to seek injunctions against businesses that use unfair standard terms in dealing with consumers. The Office of Fair Trading already has such a power but rarely uses it.

It may be unrealistic to expect an organisation of the size and standing of the CA to have retained all of its initial radicalism. However, for it to be making statements that are indistinguishable from those made by banks and major retailers is a sad waste of its potential power.

The writer is a practising barrister