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Dáil Éireann debate -
Wednesday, 12 Nov 1952

Vol. 134 No. 10

Financial Resolutions by the Minister for Local Government—Report. - Restrictive Trade Practices Bill, 1952—Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

I was in the course of pointing out when the debate was interrupted that what will be regarded as restrictive trade practices under this Bill will be decided by the commission. That commission has yet to be set up and the Minister has not given us any details concerning it except that it is to consist of not more than four or less than two members. The House will agree with me that the work to be carried out by that commission is of vital importance to the commercial and industrial community and yet, as I say, we have had so far no details concerning the composition of that commission or what interests, if any interests as such, will be represented on it.

I notice also that the quorum of that commission shall be two. That does seem a rather small and perhaps intimate number of persons to decide matters of such importance as those with which that commission will undoubtedly deal. The commission will examine various trades and the conditions under which they work and make a report to the Minister. Under Section 8 of this Bill, the Minister, having considered that report, may make an Order and he may prohibit various arrangements; in fact there is a whole range of prohibitions which he can make. Under the same section, sub-section (1), paragraph (f), he may make such other provisions in regard to the supply and distribution of goods as he thinks fit. I do not think a Minister of this House has ever been given wider powers than that.

Under the last sub-section of the Bill, the Minister has to bring that Order to this House but I am nervous, and many other people are nervous, in this regard. I am not referring personally to the Minister in any way but there will be other Ministers sitting in that position after the present Minister and we may have a Government here which is hostile to certain trade interests in this country or, indeed, perhaps hostile to very many of them. It would be a very easy thing for such a Minister, followed by a subservient Party, to make an Order which might be entirely inimical to the interests of the commercial community and, therefore, to the interests of the whole country. That is one of the objections I see to this Bill.

When we turn to Section 13, which provides the penalties, we find that certain financial penalties are laid down. In one case, on summary conviction, a person is liable to a fine not exceeding £500, and on conviction on indictment, the fine can be up to £5,000. In commercial matters one could not object to fines. I suppose it is fair enough that, if a Bill passes through this House dealing with commercial matters, financial penalties should be invoked. Perhaps £5,000 is a rather large amount and is rather harsh treatment, but still an argument can be made out that a big company might laugh at a small fine.

However, when you come to the sub-section which says that a person shall be liable to not more than ten years' penal servitude, I think that is a most extraordinary provision to put into a Bill of this nature. I cannot think of any commercial misdemeanour which would entitle a person to ten years' penal servitude. Indeed, murder, and certainly manslaughter, might not be treated as harshly as that. The Minister has not given us any grounds for thinking that there are any practices at the present moment which would warrant such a very severe penalty. If there are such practices going on at the present moment which would warrant that, I think the Minister has ample powers to deal with such offenders under the various legal remedies which exist for the restraint of trade, or offences which would warrant such a severe penalty might even be dealt with under the Constitution.

In short, I do not think the Minister has shown any justification for such a harsh penalty as ten years' penal servitude. I would remind the Minister that in commercial or trade matters, it is possible for people, to whom the full extent of the crime is not perhaps apparent, unwittingly to break the law. It might be that some innocent person could be condemned to a very heavy sentence of penal servitude for doing something which, in effect, he did not know was contrary to the law. We should hear from the Minister as to what are the reasons for putting such a very heavy penal clause in this Bill. I would like the Minister, when replying, to give us the real reasons why he considers this Bill and the very heavy penalties under Section 13 necessary.

I would like to discuss at this stage certain aspects of the commercial life of this country. Trade and commerce are not carried on in as simple a fashion as many people imagine. There exists in this country, in common with every civilised country and to a greater extent in more highly industrialised countries, a complicated system of price structure. That price structure has been built up over generations. The various structures of trades and industries have been evolved for the benefit of the particular industries, not indeed for the benefit of the persons concerned in them. While it may appear, sometimes, that a certain individual or a certain section in a trade is doing very little for the place they occupy in the structure, I would assure the House that, on examination of that particular trade and its general set-up, it will be found that that particular individual or class is contributing something to that trade, and is therefore entitled to remuneration for services.

There seems to be an idea in the minds of many people that certain sections of industry operate like pirates or brigands and that certain persons in them get a rake-off. I would like to disabuse the minds of people in this House and outside of that idea. If they think that the general trade and industry of this country is carried on in such a fashion, I tell them that it is not. There are, of course, exceptions to every rule. Very probably there are cases that will have to be dealt with, but I am quite certain that they do not exist to anything like the extent that a lot of people imagine. In the business community, any section of trade that is battening on a particular industry or on trade in general gets very short shrift unless there are certain factors preventing the ordinary flow of business.

In the past 25 to 30 years we have been building up an industrial arm, and a great deal has been said in this House for and against the industrial policy which we have been pursuing. Personally, I believe that an industrial policy is vitally necessary to this country. I also believe that behind tariffs and so on, which are and which have been necessary for the building up of that industrial arm and that industrial life, you may get certain individuals acting not in the general interests of trade. At the present moment we have quotas in addition to, and sometimes instead of, the tariff system. Deputies have referred to the actions of individuals in connection with quotas. Undoubtedly, there are individuals preying on certain industries, but I do not believe that that happens to any large extent. The Minister, through his wideawake Department of Industry and Commerce, could very well deal with such individuals in special cases, and a Bill of this sort is not necessary to rid a trade of such persons.

Generally speaking, by and large, the persons engaged in industry in this country are in it because they are necessary to the particular trade and because they are giving a service and carrying out some special function which requires their specialised knowledge.

I want to rid people's minds of the idea that the industry of this country is a vast conspiracy ranging from the manufacturers to the small shopkeepers and that that vast conspiracy works to defraud the public. That is not the case. That is the greatest nonsense. It is time somebody pointed out that industry in this country does not carry on in that fashion.

The Minister referred, somewhat darkly I thought, to letters reaching the Department complaining about restrictive practices. I am sure a number of letters have come into the Department but I would imagine that a great number of them are from people looking for terms to which they are not entitled. Many people want to buy at the same rate as shopkeepers. One of the things which the commission, which it is proposed to set up under this Bill, will realise is that fixed prices in themselves are not necessarily a bad thing. There are many people who seem to think that that is so. I shall develop that argument later.

Deputy McGrath referred to a wireless set which was bought by a local authority hospital in County Cork and said that the same week a wireless set of the same make was also bought by a voluntary hospital in Cork. He said that the two sets cost £18 each. In the first case the local authority was quoted a price less 33? and the Deputy seemed to think that in order to be able to quote less 33? that wireless dealer must have had a very large profit and that, therefore, when a few days later the voluntary hospital was quoted £18 his profit must have been enormous.

I can assure the Deputy that when the dealer quoted the local authority less 33? for that wireless set his maximum profit was something in the nature of 5 per cent. The highest it could have been was 6½ per cent., and it quite likely was 2½ per cent., so that makes the transaction far from being one which was unfair. It makes it that actually the local authority hospital got a wireless set at a very cheap price. I would imagine—I do not know precisely—the reason the local authority hospital was quoted a very cheap price like that had something to do with the bulk buying of the Department of Local Government and that that particular dealer felt that he was dealing with a hospital which might buy many of his sets. Therefore, in fact, there is no proof of any overcharging at all; there is merely proof of one hospital getting a wireless set at a very cheap price and another hospital, not so fortunate, having to pay the ordinary retail price. That is the only conclusion that can be come to from that particular transaction.

40 per cent. profit.

The Deputy has said 40 per cent. profit. Now, one of the things that that 40 per cent. would have to pay for is the probable loss on the other wireless set.

Yes. If any individual in that hospital did anything to that particular wireless which would require immediate servicing, that man would have to send out and examine the set—and, these things occur. By the time that wireless dealer maintained a warehouse, paid his assistants the recognised wages, paid rent and rates, and at the end of it paid taxes to the State on whatever profits he made, I do not think that even 40 per cent. would give him any great profit—and we have no proof that he would get 40 per cent. on every set he sold.

On your own statement.

I say that was the maximum he could have got.

That he would have 6 per cent. in addition to the 33?.

He could only have got 6 per cent. on that particular transaction, that is the maximum he could have got. In fact, I do not know whether he only got his 2½ per cent. discount. On the general question of trade structure in this country, that structure with its various price differentiations was set up, not to encourage parasites but in order that the particular trade may exist and run to the best advantage, both for those engaged in it and for the community at large. There is talk sometimes about commodities that are imported and processed. I am thinking of a particular commodity which comes in at the ports and is sent all over the country and is in universal use—I am referring to timber. It goes to inland towns, where undoubtedly there will be a merchant, builders and the general public. I want Deputies to consider the case of a merchant in an inland town who holds timber stocks. He gives employment by virtue of his assistants and men who handle the timber. He also, like the wireless dealer, pays rates and taxes. Is there anything wrong in there being different rates for those three individuals? Is it right that a person who holds perhaps thousands of pounds worth of stock, as even a small merchant would in an inland town, should find that every other section of the community is able to buy from him? Certain individuals seem to think that this Bill is going to attack price differentiation like that. I maintain that it cannot do such a thing, that if it does it will tear down the delicate structure of trade which we have in this country in common with all civilised countries. If that is done, this Bill will be the Brass-Plate Merchants' Charter. That is one of the big matters which has to be decided and it has not been made at all clear in this Bill.

A lot of people were frightened that, under this Bill, they as merchants, carrying on business decently, giving employment of a high-class character, paying top prices, would be reduced to beggary because the Government was going to come along and say: "No, any man in the street can buy in the future as you can." I believe that to be absolute nonsense. I think it is a pity that the Minister was not more clear in his opening speech to allay the very unnecessary alarm which many sections of the commercial community have felt.

One of the matters about which there has been some talk is the motor trade. I really do not know anything more about the motor trade than an ordinary, commercial individual knows. I know, however, that it has a complicated structure. It is a vast trade. It employs highly-paid men, salesmen, travellers and skilled mechanics. The motor dealers have big showrooms. Behind or at the side of those show-rooms they maintain, in many cases, repair shops as ancillaries to their business of selling motor cars. Certain individuals seem to think that there is something awful about motor dealers making a profit of whatever sum they may make on a car.

Again, I do not think there is anything wrong. The question is, are they making too much? I think that somebody in this House talked about the profit made on selling a car. It seems a terrific thing to go out and sell a car and make £200 profit, but if a man has to maintain all the complicated machinery of highly-paid labour personnel he needs that to keep those people going and to make a profit out of his business.

The Deputy seems to be travelling away from the Bill which deals with restrictive trade practices. The Deputy is talking about profits.

Well, no. Perhaps I have not made myself clear. Certain people thought that because there was a certain profit to be made on selling a motor car the motor dealers had banded themselves together in a group whose activities were restrictive. I maintain that is not so, that it would be very wrong for me or any other private individual to be able to buy a motor car and sell it at the street corner and make the same profit as people who maintain show-rooms and keep a large labour force going.

This House will have to make up its mind as to how far it is prepared to agree with price structures and price maintenance which are carried out for the purpose of maintaining industry. Indeed, in this connection, I have seen no sign of there being a discussion so far. It would be a very easy thing under this Bill for the whole complicated structure of prices to come down and this House will have to make up its mind as to how far it is prepared to run that risk.

A trader who is working with fixed prices, such a man who is working as part of an association, gives employment, maintains staffs, pays rates and taxes and makes a profit. That man is, I maintain, playing a very big part in keeping the industrial and commercial life of this country going. Is it wrong or reprehensible for that man to feel aggrieved, when he is selling at a price which is a fair price in the opinion of the Department of Industry and Commerce and in the opinion of such bodies as this House has set up, at a man who sells at a cut-throat price?

Does this House think that the man who sells at a cut-throat price does so for the good of the community? Does it think that any man slashes his stock in order to bring down the price of a commodity? No, he does it to suit himself. It may suit himself but it has never been proved and, indeed, never maintained in any responsible quarters that bankruptcy and trade difficulties did any good to a country or to the community in that country.

If it is maintained that legitimate prices exist very largely to pay the rates of pay which organised labour gets and which we are all glad to see organised labour getting, is it in the national interest that somebody who slashes prices for his own personal reasons should be held up, perhaps, as a public benefactor or that the men who seek to prevent him doing that should be held up as public enemies? Again, this House will have to decide just what its thoughts on that matter are.

I think that restrictive practices probably exist. Personally, I am not aware of them, but there are probably some. I do not imagine, however, that they exist to anything like the extent a number of people and Deputies think. I am certain that a lot of the complaints against so-called restrictive practices are complaints by somebody who wants to get a better discount or supplies of some line which he thinks he should carry. It is a delicate matter. Trade and industry are very subtle matters which have to be carefully handled and we have to be very careful in dealing with them. We are not a commercial nation and we have not been so in the past. I referred to the industrial arm which was being built up here. Just as we have not been an industrial and commercial nation as such, it is reasonable to say that we are new to some of the difficulties and complexities of commercial and industrial life and so we should proceed very carefully in dealing with them.

I wish to refer now to a very vexed question in connection with this Bill. The Minister in his opening speech made reference to the trade unions and said he was not dealing with them because they were restrictive in essence and recognised as such by the House and therefore he would not deal with them under the Bill. I think that is a very beautiful piece of sophistry. He could have given other and more cogent reasons for leaving them out. I say this in no sense against the trade unions. Far from it—I personally am a believer in trade unions and trade unionism. I have seen the benefits which trade unions can bring to the industrial life of the community when they are working as smoothly as we and they would like, and I think the right of collective bargaining which is enshrined in their constitutions is something which all civilised countries concede willingly and gladly, but I would say to the Minister that when one half of the industrial field is being brought under review and is being radically altered, as it can be under this Bill, it is not wise to leave the other half out.

I do not think that we can consider the complex and delicate structure which is being built up in this modern society without also considering one of the contributory factors to that structure. The trade unions have played their part, for better or worse, in making the commercial and industrial life of this country what it is. They have played their part in the various sections in the nation's commercial life and they have also played their part in the price structure. Therefore, for the Minister to bring in a Bill and not to discuss or work out the question of restrictive practices in relation to trade unions is something which, I think, maims the Bill and maims it from the point of view of trade unions themselves and the community as a whole. I consider this such a very big question that it might have been dealt with by means of a commission to examine the whole matter. I know that our experience of commissions is not always as happy as we would like. Sometimes they are rather dilatory, but nevertheless a commission is one of the ways in a modern world of getting expert advice on a matter which would be unsuitable for contentious discussion across the floor of this House.

I have tried to point out to the House the very complicated structure of modern commerce and business. It is really too big a subject to go into to the extent to which I should like to go into it, but I hope I have shown the House that there is always the other man's point of view and that the industrial community are carrying out their work in a way which they believe to be in the best interests of the trade itself, which carries, in most cases, the best interests of the community at large. There are undoubtedly restrictive practices of certain types, but I do not think they warrant a Bill of this type. I do not think it is wise for the Minister to take such dictatatorial powers and hand them over to an unknown commission. We especially do not know what lies in the future. We are a country which believes in private enterprise—I take it we do—but I do not believe in unrestricted private enterprise. I do not think that private enterprise should be allowed to do all it wants to do in a whole lot of ways, but the power being given to a Minister in the future to come in here and to use the last paragraph of sub-section (1) of Section 8 to do what he likes to the industrial life of this country is too dangerous a power to hand over. We live in a world in which many business interests have already felt the lash of Governments which are entirely and completely hostile to them. I regret that I must oppose this Bill. I must oppose it on the ground that it is unnecessarily harsh and on the ground that the Minister has not made a case for the introduction at this stage of such a very drastic measure.

During the debate on the Estimate for his Department, the Minister stated that industry here is now in its second phase. Over 20 years ago an effort was made to foster and develop Irish industries. In the initial and primary stages of that development many regulations were made, many Orders were given and many Acts were passed through this House with a view to strengthening these young industries, and these Orders, regulations and Acts had the effect of more or less lending themselves to use as restrictive measures. There is always that danger when a Government begins to foster industry.

We have now reached the second phase. We have built up a large number of new industries and it is time for these industries to enter on that second phase wherein there must be competition and wherein our industrialists must produce for export and the restrictive practices which operated must be done away with. It is only by keen competition and efficiency that our industrial drive will be able to cater for the export market. It is for that reason that I am so much in favour of this measure.

It has been stated here by some speakers that the industrialists and the business people are not afraid of the Bill. I think it was Deputy Dillon who said that these people thought that Fianna Fáil did not mean anything in putting this Bill before the House and that they were not afraid of it. That is not so. Every Deputy must have received dozens of letters from associations, federations and groups of one kind or another. Every mail brings circulars advising Deputies to vote against the Bill. That goes to show that many people are afraid of the Bill. These people should be asked: "If there is nothing to hide, why be afraid of the Bill?"

The penalties laid down are harsh. The discussions which have taken place in the Press and elsewhere have had a salutary effect. The ordinary man in the street is becoming interested in this matter. He is beginning to discuss these questions. The feeling is abroad that people should not regard excess profits, rings and so forth as matters that ought not to be talked about. People have begun to talk about these things. That is a healthy sign.

A statement made by a businessman sums up the situation correctly. He said that if 5 per cent. of the business interests of this country tie up the other 95 per cent. we will have chaos. That is quite true and any measure which aims at counteracting that should have the support of this House. Competition is very necessary right through each phase of our industrial arm because competition produces efficiency since manufacturer will compete against manufacturer in an effort to produce a better quality article at possibly a lower price. Competition will induce the wholesaler to use better methods of distribution and so on.

It is not right that a particular agent should have a complete monopoly of any particular commodity in general use. If an individual or a group of persons has a complete monopoly of the sale and distribution of a particular article that inevitably leads to practices which are not beneficial to the consuming public. The farming community suffers heavily from the activities of business people and others who purchase the products of the farm. The millers purchase farm produce. Throughout all the different processes very large profits are made. The hide buyers have a monopoly of the hide and skin business. They can offer any price they like to the farmer and he must either accept a bad price or not sell his hides at all. There are rings in other spheres of trade also. Take, for instance, petrol. Petrol is not readily available to prospective retailers, no matter what the distance may be between two petrol pumps. If a village has a petrol pump, and if the next village is ten or 15 miles away, a person between those two villages who wishes to erect a petrol pump for the benefit, possibly, of the farming community in that area is not allowed to do so. That is one of the many things that should receive attention, and that will, I am sure, when the fair trade commission is set up.

The last speaker said that the Minister should have included in this Bill the matter of the practices adopted by some trade unions. As everybody knows, there are restrictive practices pertaining to some of the unions inasmuch as everyone who wishes to become a union member cannot do so, and that the restrictions are very tight in certain trades. In a large organisation such as the trade union movement —an organisation which has rules and regulations and which can look after its own affairs—I think it would be a matter for the unions to set their own house in order, and I may say that many of them are doing that. If, eventually, the trade union movement does not tackle the matter in earnest, then it will be up to the Government to take some measures to do away with any restrictions which may exist.

It was mentioned in this House that a member of the Garda or other persons have the right under this Bill to enter business premises, to ask questions, and so on, and it was stated that that is unfair. Some Deputies asked why should a businessman or a manufacturer be subject to such a scrutiny. Very many people in this country are subjected to queries and scrutinies of that kind. The Revenue Commissioners scrutinise the business of an individual. When a person is looking for an old age pension or for benefits under the social welfare schemes he has to submit a statement as to his income, and an inspector interviews him and queries him on many matters. I do not think that the manufacturers or business people of this country should be in a privileged position. They should be subject to questioning, to inquiry and to scrutiny as much as the ordinary man in the street.

I want to refer to a matter which I hope will receive attention. It may not come under the scope of this Bill, but it refers to a vast number of fairly cheap or small articles which are in everyday demand in every household in the country. One shop sells such an article at 2d.; another shop sells the same article at 3d., and the third shop sells the same article at 2½d. Where there is a difference of 1d. in an article costing a few pence it means that the percentage of profit must be very high.

That does not seem to arise on restrictive practices.

I was afraid it might not so arise but I feel that it is a matter which should receive attention. Deputy Dockrell did not seem to think that motor sales people make huge profits. He said that they have to maintain showrooms, to employ staff, travellers, and so forth. I have often wondered why it is that in this State cars are sold at a price which, in many cases, is lower than the price charged in Britain, and in some cases not much higher than the British price. We must bear in mind that the British Government rake off 33? per cent. purchase tax and that the motor sales people there have garages, show-rooms and have to employ staff just as much as the motor sales people here. Yet, after paying 33? per cent. purchase tax—I think it is even higher in some cases—they are able to sell their cars, retail, at a price which, in some instances, is lower than the price charged here.

The general opinion throughout the country in regard to this Bill is that it is a good Bill and that it is necessary. From the speeches I have heard in this debate it would appear that that is also the feeling of this House. I hope that, when the commission is set up, the ordinary person will benefit by any regulations which are made to help to bring down prices and to do away with restrictions which—in some cases, of necessity—have grown up in a period when our industry was growing up.

As there appears to be a pretty fair measure of agreement amongst all Parties in the House that there exists in our economy an evil comprehensively described as a "restrictive practice" which requires to be treated, I propose this evening to devote myself practically entirely to the consideration of whether the measures adopted in this Bill are adequate for the purpose for which they were designed, namely, to extirpate that evil from our economy. Before I criticise the specific proposals for dealing with that evil, there are certain general comments which I should like to make because I feel that it may be misrepresented hereafter, from the criticism that I have to offer, that I or those with whom I am associated are in favour in some way of the restrictive trade practices which this Bill is designed to eradicate from our economy.

I should like to recall the fact, because it is a fact, that the trail which the Minister is now treading, was one that was blazed for him by his predecessor. I think I can claim, I hope correctly, that I was the first Deputy in this House to raise in this House this question of restrictive trade practices. Speaking on the Budget Resolutions of the year 1947 on the 13th May, 1947, as reported at column 78, Volume 106 of the Dáil Debates, I made use of the following expression:

"When businessmen and industrialists ask trade unions to give up their restrictive rules, to allow a greater flow of apprentices into the various crafts and trades, industrialists who get the benefit of State assistance should be asked themselves to do their part in connection with the abolition of these combines and trusts of protective associations which exist for the purpose of restricting entry into particular classes of trade, industry and commerce and also for the purpose of keeping up prices."

During the general election campaign of 1948, I stated that the abolition of these restrictive trade practices was one of the aims of the Party which I was representing. Therefore I think I can say that, so far as we on this side of the House are concerned, we are as much against these restrictive practices, cartels, monopolies, rings and associations, whose aims are the maintenance of prices for the sole or main purpose of enriching their members, as any other section in this House or outside the House. But when we set out to abolish an evil we must know our objective and we must know the particular type of objectionable practices which we wish to extirpate.

One of the main features of this Bill is that while it uses in two or three places and in the title the phrase, "restrictive trade practices" and also speaks of "fair trading rules", nowhere in the Bill is there any definition or description of what are restrictive trade practices, nor is there any guide to the commission that is proposed to be set up under the Bill as to what are fair trading rules. I appreciate fully the difficulty of defining restrictive trade practices or laying down with precision guides or rules to direct this commission in the task which is proposed to be given to it by this Bill to lay down fair trading rules. But the difficulty of description or definition, in my opinion, at all events, ought not to prevent an attempt being made to define those practices. I was personally impressed with the argument at first that it would be better not to lay down any definition or attempt to define restrictive trade practices because of the difficulties of doing so, and because of the possibilities of evasion, or misinterpretation, due to faulty draftsmanship, but, after full consideration, I have come to the conclusion that, unless there are some definitions or descriptions of the practices which we wish to eradicate, then this Bill will fall very far short of the objective at which it is aimed.

We regard these malpractices, which are comprehensively described as restrictive trade practices, as something which are very ugly indeed. They are something operated by the possessors of wealth, property and influence in order merely to levy a toll on the general community, something operated in their own selfish interest, and they achieve their objectives by means of cartels, monopolies, rings and the other means that have been referred to in the course of the debate. I believe that these practices are unjust. I believe they are unjust, because they represent an interference with liberty, inasmuch as they preclude our people in general from free dealing in the products of human labour and, at the same time, deny the right of the public to enjoy the full play of free competition.

I find it hard to follow, while realising the difficulties to which I have adverted of defining restrictive trade practices, how we can really achieve what we apparently wish to achieve, unless we can ourselves define for ourselves, or at least adequately describe, the restrictive trade practices which we are aiming at eradicating. I therefore think, and I shall in the course of the remarks I have to make urge upon the Minister that he should take a different course from what he has taken in the Bill. While, as I have stated, I fully agree that there are difficulties in definition, I think that a greater measure of success would be achieved if the attempt is made.

The last speaker referred to the fact that there were numerous criticisms of this Bill. I must disagree with him. What struck me about this Bill, when it was first published, was the extraordinary silence of those people and associations from whom you would have expected—certainly I would have expected—more clamant protests than have been made. This Bill was ordered to be printed by Dáil Éireann on the 26th June, 1952. I had expected, and indeed had prepared some remarks for a speech at that stage, that the Second Reading of this Bill would be taken some time in July. The Second Reading was not reached last July, and up to the time of the adjournment of the Dáil, so far as I have been able to ascertain, there was not a single public protest from any association, group, cartel or monopoly whose interests might appear to be affected prejudicially by this Bill. It was only within the last fortnight or three weeks that the Federation of Irish Industries and the Associated Chambers of Commerce have been publicly vocal upon this measure. Again, to me at least, the remarkable feature about these so-called protests is their apparently extraordinary reasonableness. I must say that these facts to which I have adverted raise suspicions in my mind as to the effectiveness of this Bill.

The smaller groups would only draw attention to themselves by objecting vocally.

The main fact is that they have not, and everyone knows that they exist.

Mr. Lynch

There may be something psychological in it.

Everyone knows that they exist and, possibly, the Parliamentary Secretary may be right that it is better for them to scuttle in the hope that they may not be noticed. One of my objections to the machinery established by the Bill is that those classes of people, in fact, may not be noticed, at least for very many years. The Parliamentary Secretary may, therefore, be right, that it might be better tactics to take cover.

At all events, I think we must know what particular restrictive practices we are aiming at. The Minister, in the course of his remarks, spoke about delays in court. I will have occasion, in the course of the observations which I have to make on the machinery it is proposed to establish by this Bill, to comment upon the fact which, I believe, will be a fact, that whatever may be said about delays in court they will be nothing to the delays which will occur under this machinery.

There was one matter, I think, mentioned by the Minister in the course of his opening remarks with which I certainly do not agree. He said that he did not think there were as many of these restrictive practices in existence in this country as elsewhere. I, personally, think that there are more, relatively speaking, in this country than elsewhere. I think, as has already been pointed out and, indeed, partially or impliedly admitted by the Minister himself, that many of these restrictive practices have been bred in the atmosphere of restrictionism which has unfortunately been associated with the national policy of industrial development.

The last speaker also referred to the fact that, some time within the last 20 years, an effort was made to encourage Irish industry. That is a remark which I certainly could not allow to pass without comment. It was not protection, I assume, which the Deputy was referring to, but the intensified campaign or policy of protectionism which was inaugurated in 1932. It was not protectionism which established the Shannon scheme, the greatest industrial achievement since the establishment of the State. Irish industry was protected and encouraged long before 1932.

I said over 20 years ago.

Now, while, as I said earlier in my remarks, I believe that the real basis of our objection to these restrictive practices is that they are unjust, what we have set out here to do is not to do an injustice but to do justice. Deputy Dockrell, I think, stated that we were in favour of the principle of private enterprise. Certainly, the Party that I belong to stands for the principle of private enterprise, regulated private enterprise if you like. What we want to do, and what I believe the real, genuine businessmen, manufacturers and industrialists also want to do is to eradicate these particularly obnoxious trade restrictions and practices which, in fact, are the enemies of the free enterprise system and threaten its continuance, so that, those practices having been got rid of, private enterprise may operate freely within our economic system. That is our justification for standing for something like this Bill, and certainly for the principle of eradicating restrictive practices from our economy: that it is good and necessary for the proper functioning of the free enterprise system in a free economy that these restrictive practices should, in the public interest, be eradicated.

The question which we have to determine is whether or not this Bill does effectively or will, if brought into operation in the form in which it now stands, do effectively what all sections in this House desire to be done—that is do what I have described, eradicate this evil of restrictive trade practices from the free enterprise system in order that that free enterprise system may operate freely in an atmosphere of freedom. We must not do an injustice to other persons.

There have been critics of this Bill. There have been two types of critics of the Bill. Of one of those types of critics, I think probably the least said of them the better. We have the critic of the Bill who will raise all sorts of points on the Bill because his own private wealth is being attacked, and because his method of scooping the pool at the expense of the public is in danger. With that particular type of critic, I have no sympathy whatever.

There have been other types of criticism of this Bill, and the controversy which has taken place about the Bill has not been altogether fair to at least some of those critics. I say that because those particular types of critics, the chief spokesman of whom is Senator McGuire—he and those for whom he stands—are as critical of these restrictive practices as any of us, but they are very deeply concerned about the methods employed to deal with them and of the possible evil effects or consequences that may ensure.

Now, I do not think that you can solve one problem by creating another problem or problems. I think that is what the machinery devised by this Bill is going to do. I have made it my invariable practice in this House never to express legal opinions, or opinions on constitutional matters, but I do deem it proper that I should ask the Minister if he has had it considered whether or not this Bill, and the machinery provided by it, in any way infringes the provisions of the Constitution. I presume that I will be misrepresented for having raised that point. I do not raise that point for the purpose of putting any impediment in the way of the Minister in dealing with these restrictive practices. I raise it for the reason that I believe there are certain interested groups who may be affected in their personal interests adversely by the provisions of this or some other Bill, or perhaps a better Bill that may be devised to deal with these restrictive practices, and that they will find ways of frustrating the effort to deal with these practices, one of which may be to attack the constitutionality of these provisions. Therefore, I think that this House is entitled to know whether or not that aspect of the matter has been given the consideration to which it is entitled.

I recall a case which came ultimately to the Supreme Court in which part of an Act passed by the Oireachtas was declared to be unconstitutional. It was a trade union Act and was sponsored, I think, by the present Minister during the régime of the Fianna Fáil Party prior to the change of Government in 1948. The representative of the Attorney-General in that case argued both before the late Mr. Justice Gavan Duffy and before the Supreme Court that the Constitution gave power in the public interest to regulate the right of forming associations and trade unions which is guaranteed by Article 40 of the Constitution, and that that power conferred upon the Oireachtas, the Parliament, the right to abrogate and take away the right to form associations or trade unions.

We have to face this situation as it stands at the moment, that business people under the law as it has been declared in our own courts are entitled to form what we would regard as price maintenance rings, provided only that they do so for the protection of their own trade and personal interests and not with the idea of injuring any other person. There is, therefore, a private right established by our courts, and what we have to do in this Bill is to ensure that we will be able so to frame a law that the public interest may be reconciled with private right and that, while fair play should be given to the public and the consumer, justice must also be given to the trader and the manufacturer.

Under Article 40 there is a right to form these associations, but in the same Article Oireachtas Éireann is authorised to enact laws for the regulation and control in the public interest of the exercise of that right. Under Article 43, the right of private property is guaranteed, but the same Article recognises that the exercise of the rights appertaining to private property must be regulated by the principles of social justice, and that a law may be enacted to see that these rights are exercised in accordance with social justice.

Now I think it is incumbent on the Government, and the Minister in particular, to assure this House that the machinery recommended for adoption in this House is in strict accordance with the powers conferred by the Constitution on Oireachtas Éireann to regulate in the public interest the right of forming associations and the exercising of those rights appertaining to private property which are guaranteed by the Constitution. Unless care is taken in that respect damage will be done to the particular desires that all sections apparently have, namely, to eradicate the exercise of rights by private individuals acting in association or conspiracy contrary to the public good.

There ought not to be any great difficulty in so framing a law as to come within those Articles of the Constitution. But, acting as I was on that occasion for a trade union, I refused to follow the line adopted by the counsel for the Minister when he said that this Parliament was entitled to abrogate the right of forming associations and trade unions, and I confined myself merely to suggesting and arguing that the particular law which was being attacked was one exercising the right conferred on Parliament by the Constitution.

I want to emphasise that I am expressing no opinion on whether or not these powers would be regarded as powers regulating in the public interest the exercise of the rights of free association and the exercise of rights appertaining to private property. But, unless that problem is tackled, a more difficult problem may be presented to the Minister and to the House.

Having raised that point, which I think is rather a fundamental point, I want to examine some of the provisions of the Bill. I have already directed the attention of the House to the fact that there is no definition or even description of what are restrictive trade practices or what can be regarded as fair trading conditions. I entirely object to Sections 3 and 4 of this Bill. The reason that I object to them is that I formed the view shortly after getting this Bill last June, when I awaited the storm of criticism which I expected and which did not arise, that the effect of Sections 3 and 4 of this Bill would be, not to result in a set of conditions being conceived, designed and codified which would be fair trading conditions, but to give legality and the full force of law to what, in fact, we know as restrictive practices.

I note here that there is no power in anybody except an association representing persons engaged in the supply and distribution of any kind of goods to apply to have fair trading conditions with regard to the supply and distribution of goods formulated by this commission. I asked myself what was the point of that; why was it given to the very associations, or some of them, to which objection is taken to have the sole right and privilege of applying to this commission to have fair trading rules established? I must say that I approached these sections, therefore, with very considerable suspicion and I formed the conviction, a conviction from which I see no reason to depart, that the effect of these sections, if they have any effect at all, will be to enable these associations to get the force of law for rules and practices to which many would object. I think the Minister will be well advised to leave out Sections 3 and 4 of the Bill.

These rules will not have the force of law.

I can appreciate that they do not have the force of law as such, but the fact that they have been given by the commission as fair trading rules will give them a sanction which these rules would not otherwise have, and that sanction in my opinion would eventually be such as to operate to give them in fact, not the force of a Statute, but the force of law outside a Statute.

I move the adjournment of the debate.

Debate adjourned.
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