I move amendment No. 1:—
1. To add the following definition:—
"restrictive trade practices" shall, in relation to the supply and distribution of goods include—
Any practices, measures, rules, agreements or acts whether put into effect or intended to be put into effect by a person alone or in combination or agreement, express or implied, with others or through a merger, trust, cartel, monopoly or other means or device whatsoever which—
(a) are designed or likely unduly or unjustly to limit or restrain free and fair competition; or
(b) are in unreasonable restraint of trade, or
(c) are designed or likely to have the effect of substantially lessening or interfering with free and fair competition or unjustly eliminating a competition in trade or business or manufacture, or
(d) unduly enhance the price of goods or promote unfairly the advantage of either manufacturers, producers or distributors of goods at the expense of the consumer or the public, or
(e) are designed or likely to secure a substantial or complete control of the manufacture or distribution of goods or any classes of goods, or
(f) prohibit or restrict without just cause the supply of goods to any person or classes of persons, or give preference in regard to the provision of or the placing of orders for the supply of goods, or
(g) limit or restrict or are likely to limit or restrict the exercise by any person of his freedom of choice as to what goods or classes of goods he will manufacture, purchase or sell or his technique of manufacture or production or the area in which he will sell or distribute his goods, or
(h) impose unjust or unreasonable conditions in regard to the supply or distribution of goods, or
(i) are designed to exclude or are calculated to exclude without good reason new entrants to any manufacture, trade or business, or
(j) are designed or calculated to secure the territorial division of markets between particular persons or classes of persons to the exclusion of others, or
(k) are likely to result in injury to the national economy or to operate to the detriment of the public interest, or
(l) are not in accordance with the principles of social justice.
Provided always that nothing in the foregoing description of the expression "restrictive trade practices" shall include any practices, measures, rules, agreements or acts which are
(a) bona fidedesigned and operate to encourage production, or increased efficiency in manufacture or distribution, or the elimination of waste, or orderly markets, or distribution, or a fair and just price for sale and resale or the maintenance and increase of employment and
(b) which are not contrary to the principles of social justice or the public interest.
In the course of the remarks which I made on the Second Reading of this Bill I criticised it on a number of grounds. One of my chief criticismswas the fact that there was no definition or description in the Bill of "restrictive trade practices."
If I may just shortly state the basis of that criticism, I think I can put it into one sentence—that if we do not know what restrictive trade practices we are aiming at in this Bill then how can the commission that is charged with responsibility of different kinds under this Bill perform effectually those responsibilities on a completely uncharted course?
I stated, in the course of my observations, that I would on the Committee Stage put forward alternative proposals to deal with those restrictive practices to which all sections of this House are opposed. I, accordingly, addressed myself to the task, not an easy one, of fulfilling the undertaking, if I may dignify it with that expression, that I gave on the Second Reading. The first task that I was faced with was the task of giving a definition or description of the expression "restrictive trade practices." Now, on the Order Paper here an amendment is down in my name as being "to add the following definition." I am not responsible for the word "definition" in that document. It was deliberately left out in my draft and was put in, presumably, by some official in the Dáil office without my authority, I carefully avoided, in the clause to the amendment I put forward, using the expression "definition". In the proviso to the clause, I used the words, in reference to the description of trade practice "the foregoing description of the expression", and the way in which it is down here is " `restrictive trade practices' shall, in relation to the supply and distribution of goods include".
My purpose was not to define restrictive trade practices, and I want to make it clear that the word in the Order Paper is not mine. My purpose was merely to give a description of the phrase "restrictive trade practice", a method adopted and a method well known to the parliamentary draftsman in various statutes on our Statute Book when he proceeds to put into what is called a definition clause of a Bill or statute a description which is not a definition.
I want to make it clear that I have not set out to give an exhaustive, comprehensive or exclusive definition of the expression "restrictive trade practice". What I have done, and what I hope I have fairly well done, is to give a list of those practices which may properly be described as restrictive trade practices of the type that this Bill, I believe, should be aimed against.
In the clause dealing with private property in the Constitution, Article 43, the right of private property is acknowledged and safeguarded, and provision is made that the exercise of that right of private ownership may be regulated by statute, but must be regulated in accordance with the principles of social justice. Now, that phrase, "the principles of social justice" is not an easy phrase to describe or to define, but we start with this assurance, at all events, that our Supreme Court has stated that, notwithstanding the recognition by that court of the difficulty of ascertaining what those principles of social justice are or may be, that court will, if and when the occasion arises, undertake the task, in a particular case, of saying whether or not those principles have been abrogated by statutory regulations. Therefore, we have the fact that our courts are prepared to undertake that task, and, knowing that, I set out in the proposals that I have made in this particular amendment, and in some other amendments that I have put in, to secure what I also said in my Second Reading speech was essential, that our courts should have some control and some say in determining whether or not a particular individual had been a party to or privy to restrictive trade practices.
Accordingly, this description which I have put in here in the first amendment is integrated into some other amendments that I have down to later sections dealing with the proposed power to the courts to grant an injunction. Dealing, however, with this descriptive passage that I have put in here, I want to make it clear that I do not claim for the descriptions which I have given here of restrictive trade practices that those descriptions are comprehensive or exclusive or that they catch everybody or every kind ofrestrictive practice to which objection might lawfully be taken. The way it is put in as a description does not preclude the court or anybody else from saying, in a given set of facts, that these facts constitute a restrictive trade practice.
I am fully conscious that human ingenuity, legal ingenuity, if you like, and certainly commercial ingenuity will be able, no matter what is done in this or any other Bill, to find methods, ways and means of getting round any machinery or any plan that may be devised to prohibit restrictive trade practices. But, at all events, I do claim for the effort I have made that at least it gives some guide, some indication of the way in which the commission which is to be appointed under this Bill, if it be appointed, should act. It gives them a headline, it gives them something by which to regulate their conduct and something to which their consideration should be directed on particular facts brought before them where it is alleged that an individual or group of individuals are engaged in restrictive trade practices.
I objected very strongly, and I still object, to Section 3 of this Bill. That section, as it stands, purports to permit the commission to frame and publish fair trading rules. How can that commission publish these fair trading rules if they have not got the remotest idea, or some guide, as to what are restrictive trade practices? How can the commission, when they purport to act under subsequent provisions in the Bill, if they become law, in advising the Minister—how can they justly frame and do justice between various citizens if they have no guide to direct them as to what are restrictive trade practices? They are left completely at large to do what they like.
A particular commission, in its outlook on what are restrictive trade practices, must have a different idea from another commission that may subsequently be appointed by a different Minister. In other words, as I have said, there is no guide, and the commission inevitably must change in accordance with the political complexion of the Minister that appoints it. A conservative Government, if it ever was in this House, might take the viewthat restrictive trade practices should be merely restricted, and the people appointed by such a conservative Government, with an outlook on private enterprise of a character that would permit the operation, the unrestricted and unrestrained operation, of trade practices to which we object, might very conceivably appoint to this commission people who had bona fideheld the view that restrictive trade practices were to be very strictly confined in their scope.
It will be observed, when an analysis is made of the various clauses that I have put into this description, that underlying the whole of them there are two principles: one, that there should be permitted as full and as free and as fair competition in industry and trade as possible, that anything that unduly, unfairly or unjustly interferes with the right of the individual citizen of this State freely and fairly to trade as he thinks fit should be very carefully regulated.
The second principle underlying it is an endeavour to reconcile two conflicting interests. I am anxious, and I think most of my colleagues on this side of the House are anxious, that there should be as restricted as possible any further interference by the State in the conduct of trade, business and industry.
We do not want to let out from this House, if we can avoid it, a measure which will give power to any Minister or any Government, whatever Party they may belong to, unduly to interfere again in trade, industry or commerce. Accordingly the underlying principle is to protect the public interest and the interest of the consumer while at the same time giving a measure of justice and security to the right of people to carry on their own business as they like, in the manner that they wish. Private enterprise should have free scope without undue interference provided always that the exercise of that right of free enterprise does not transgress the principles of social justice that are referred to in the Constitution or unduly prejudice the right of individual citizens to free and fair competition or prejudice the right of the consumer in connection with his purchasing of essential goods.
As I say, the description that I havegiven here of the phrase is an endeavour to reconcile these two interests and, accordingly, while in the first part of the description lists are set out in paragraphs of a variety of matters which can be properly regarded as restrictive practices, at the end of it I have inserted a proviso that nothing in the description of the expression "restrictive trade practices" shall be deemed to include any practices, measures, rules, agreements or acts which are bona fidedesigned and operate to encourage production, or increased efficiency in manufacture or distribution, or the elimination of waste, or orderly markets, or distribution, or a fair and just price for sale and resale or the maintenance and increase of employment and which are not contrary to the principle of social justice or the public interest.
That proviso as drafted is an effort to take out from the scope of this commission any such measures or practices which most of us will agree are not restrictive trade practices but which some particular Minister with a particular social or political outlook might very conceivably think was a restrictive trade practice. It is an effort again to reconcile the interest of the public and the consumer and the right of the individual carrying on a trade, the right to free and fair competition and the right of free enterprise.
In the course of observations that were made by spokesmen representative of business and industry when this Bill came out first, attention was directed to and emphasis was laid upon the allegation that there was a number of these trade practices which might appear to be restrictive but which in fact were good for industry and trade and good for the public and good for the consumer. If there be, and I think there are, such practices and measures and acts, whether done by an individual or any combination, then they ought to be protected. There is no protection in the Bill as it stands at the moment.
I urge upon the House the necessity for having some such description as is here. I do not put it forward as perfect. I do not put it forward as anything approaching perfection. I put it forward as suggestions. TheMinister can get his experts to examine them, dissect, analyse them, add to or subtract from them, but I do think it is fundamental, if this Bill is to have any effect whatever, that there should be some sort of description as a guide to the commission and to the courts as to what in the opinion of the Oireachtas will constitute restrictive trade practices. Otherwise, the commission is completely free; it has no guide, it is completely without any notion as to what are restrictive trade practices and, accordingly, each particular commission will decide in accordance with the personal views of the personnel of that commission, which must vary from time to time, what are and what are not restrictive trade practices.
I feel so strongly on this matter that I have no doubt that if something of this character is not inserted in the Bill and if something of the scheme that I have outlined to meet the situation as I see it is not inserted in this Bill and if the Bill goes on to the Statute Book as it was introduced into this House, then this is a measure of little if any value to the community.