Dáil Éireann debate -
Thursday, 5 Feb 1953

Vol. 136 No. 2

Committee on Finance. - Restrictive Trade Practices Bill, 1952 —Committee Stage.

SECTION 1.

Mr. J.A. Costello

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.

Mr. Lemass

When this Bill was being prepared I did not consider it necessary to insert in it any definition of restrictive trade practices. I did not see that such a definition was required except to the limited extent that it appears by implication in Section 7. It seemed to me that there was danger in attempting to define, a danger of which, apparently, Deputy Costello became conscious when he himself set his hand to that task. If we define restrictive trade practices, we are taking the risk that our definition will be incomplete, that it may exclude the possibility of action against objectionable practices which do not fit into our definition and the further risk that the intentions of the Dáil may become distorted in the course of time as courts of law proceed to interpret the wording that we may choose to adopt in defining these practices. In so far, then, as there is a desire to have a definition of restrictive trade practices which could come in any way within the purview of the courts, I think it is undesirable.

When I received Deputy Costello'samendment, however, and being anxious to go as far as is reasonable, in my view, to meet various views which were expressed here during the Second Reading debate, I asked myself whether there would be any objection to having in a Bill a definition of restrictive trade practices as a headline, to use Deputy Costello's phrase, for the fair trade commission, and I came to the conclusion that there could be no objection. For that purpose, therefore, I am prepared to take Deputy Costello's amendment and, subject to certain changes in it which I will indicate, to have it inserted in the Bill as an indication to the fair trade commission proposed to be established of the kind of practices that the Dáil had in mind when enacting the measure as a headline to which they should have regard, particularly in the framing of voluntary fair trading rules.

Deputy Costello admitted that the task that he undertook in attempting to define these practices was a difficult one and he indicated that he was not satisfied that he had, in fact, been able to produce definitions which would be watertight or satisfactory from every point of view. I think that we can adopt, in the main, the various paragraphs of his amendment, subject to some redrafting. But there are some observations which I think I must make, because they refer to objections which are wider in character than those that might be made to the actual phraseology used in the drafting points which I have in mind. I think that if we are to set out in a Bill a definition of restrictive trade practices as a headline to the fair trade commission we must find a form of words which will make it quite obvious that we are not limiting in any way the kind of practices that they are there to deal with if they consider them objectionable.

On the other hand, I do not think we can attempt to put into legislation, even as a headline, references to the principles of social justice. As Deputy Costello says, they are not easy to explain or to define. I think we should confine our definition to specific trade practices which we know or believe to exist, and which we desire to eliminate and try to get a form ofwords which will make it clear that the fair trade commission is there to deal with any practices which operate to restrict competition, restrain trade, or involve resale price maintenance.

In my view, Deputy Costello spoiled this whole draft by putting in the proviso. It seems to me that the proviso rather nullifies everything in it. In my experience, every restrictive trade practice, even those that we all agree are objectionable and should be eliminated, is defended by those who operate it on one or other of the grounds set out in the amendment, and if this definition is to be used as a headline to the fair trade commission the proviso is not necessary, because it will be precisely their function to decide and to report their view as to whether a particular trade practice, which in some circumstances might be objectionable, might nevertheless be permitted in others because it promoted efficiency, eliminated waste, stimulated production, or did any of the other things set out in the proviso.

Deputy Costello had in mind something different from the section of the Bill. As it stands, nothing will come before the courts except the question whether a statute has been broken. Any Order made under this Bill by the Minister on a report from the fair trade commission will have no legal effect until it has been enshrined in a Bill passed by the Dáil and put on the Statute Book as law. Then and only then do the courts come into the picture, and they come in to the extent of determining whether in a particular case an individual firm has violated a provision of that law. They will not, therefore, it seems to me, be called upon to decide themselves whether a particular practice is restrictive of trade or contrary to the principles of social justice or otherwise objectionable. That will have been decided by the Oireachtas when it has enacted the legislation confirming the Order and made it a matter of law. That being so, it seems to me that this proviso and general qualification cannot be left in, that the only thing we need, as theDeputy put it, is a headline to the fair trade commission, an indication to them of the type of practices that they are to have special regard for, both in framing fair trading rules and making their report under Section 7.

On that basis, I would be prepared to have this series of definitions considered and redrafted so as to provide for what I have in mind. However, a further change would be necessary. The Deputy in some of his sub-sections has a reference to manufacturers. The aim of the Bill is to deal with restrictive practices in regard to the supply and distribution of goods. I think it is desirable that we should confine this intended legislation to that. In fact, we have not got any monopolistic condition in industry of which we are not fully aware and which we have not ourselves either established by law or impliedly sanctioned by the provision of protection in one form or another. The aim of the fair trade commission will be to deal with the supply and distribution of goods. I think it would be wise to confine the series of definitions set out in the sub-section proposed by Deputy Costello in conformity with the title of the Bill.

Mr. J.A. Costello

The Minister has gone a considerable distance to meet the point of view I put forward. I want to assure him that I have no undue pride in my draftsmanship and that he is at liberty to make any change which the expert draftsman advises. I think I could not possibly pass by the phrase that the Minister used in reference to the courts. His notorious objection to the courts of justice having anything to do with this has emerged on this occasion. I wonder does the Minister ever advert to the fact that our courts are courts of justice and that they are there for the purpose of every citizen getting justice under the Constitution?

The Minister objected to the courts having anything to do with these matters. One of the reasons he gave for his objection was the risk of the intention of the Dáil being distorted by the courts. What risk of a character of that kind can be compared to the risk that may be run by individual citizens whose rights may be invadedby the political commission set up under this Bill?

Mr. Lemass

No rights will be invaded. Neither the commission nor the Minister can do anything.

Mr. J.A. Costello

The Minister must agree that this commission which is appointed by the Minister is a political commission.

Mr. Lemass

But it cannot do anything.

Mr. J.A. Costello

Let us start with the fundamental proposition that this commission is appointed by the Minister. Under the provisions of the Bill as it stands at the moment any appointee can be removed without an instant's notice. That is a political commission. It is true that the commission cannot of itself act, but when it gives advice to the political Minister that appointed it, and if that advice is of a character that commends itself to that Minister, then the Minister presents that to the Dáil, and in theory, of course, it is the Dáil that gives that Order statutory effect, and the Order thereupon becomes an instrument with statutory effect, as the Minister himself said.

The fact is, as everybody knows, that that Minister would have to go out of office unless he had a majority behind him here politically supporting his political views. Therefore the whole of this matter is impregnated with the particular views of the particular Minister who appoints the commission politically to reflect his views and whose opinion will not be accepted unless it is in accordance with that Minister's view. That Minister cannot get those views through this House unless he has behind him a political Party to walk into the Lobby in support of him. That is the practical effect of this proposal. I, therefore, insist that there is far greater risk of injustice being done by a commission of that kind than there is in allowing our courts of justice to decide, our courts of justice which have been set up under the Constitution to give an individual whose rights are impaired a chance of making his case in—let meagain emphasise it—our courts of justice.

In relation to the point made by the Minister that the word "manufacture" should be left out——

Mr. Lemass

Only in one paragraph where it has the effect of widening the scope.

Mr. J.A. Costello

——I am prepared to agree with the Minister's point of view to a certain extent but I want to advance one argument against his point of view. It occurs to me that the word "supply" in its ordinary and natural connotation would include "manufacture". One cannot get a supply of goods unless one gets them from the person who produces them. He gives them to the wholesaler, the wholesaler supplies them to the retailer and the retailer supplies them to the consumer. Therefore, the word "supply" must include manufacture.

Mr. McGilligan

The Minister on the Second Reading brought in manufacture.

Mr. Lemass

There are quite a number of paragraphs in Deputy Costello's amendment where it is appropriate and would have to remain.

Mr. McGilligan

Manufacturers is already enshrined in this legislation.

Mr. Lemass

As suppliers of goods.

Mr. McGilligan

The Minister himself referred to "manufacturers" in his Second Reading speech.

Mr. Lemass

As suppliers of goods, yes.

Mr. McGilligan

If they come in as suppliers then they are in.

Mr. J.A. Costello

There is the point that it is well known—let me not raise anybody's ire by referring to anything here—across the water that manufacturers indulge very largely in these restrictive trade practices.

Mr. Lemass

They do here, too.

Mr. J.A. Costello

If the Minister thinks the phrase has gone too far, I am not wedded to any particular letter, word or comment of that description. The Minister said I spoiled the effort I made in the beginning of the suggested definition. I put that in for thepurpose of making it clear that I had not overlooked the fact that people claim that their particular trade practices, though they may in some senses be regarded as restrictive, can in other senses be regarded as conducive to the public good and even to the good of the consumer. I do not want these particular practices to be swept into the net and my effort in that proviso was merely an attempt to safeguard these proper practices and at the same time to assure those people who are risking their money and their energy in industry and commerce and business here that there will be no undue interference in their particular practices.

I thought I had safeguarded the point made by the Minister, namely, that paragraph (a) would be descriptive of the kind of practice that these gentlemen very frequently refer to as the only kind of practice they are indulging in, and that they indulge in it for the benefit of the community. I thought I safeguarded that by putting in paragraph (b). I thought I had got both in that. If the Minister can produce an alternative scheme, plan, definition or description which will safeguard private enterprise, business, manufacture, trade and commerce here from undue interference by the State in its affairs and permit of the regulation of such business by agreement between the interested parties in a manner that is not contrary to the interests of the consumer, to the interests of the public or to the principles of social justice, then I am quite satisfied.

Mr. Lemass

If the Deputy will withdraw his amendment, I will produce an alternative amendment on the same principles on the Report Stage and the Deputy can then have the pleasure of pulling that to pieces.

Mr. McGilligan

I understand this amendment is not being accepted. Will it be redrafted in such a way as to safeguard the position, because I can see danger along the lines of redrafting in the light of the Minister's speech? The Minister said this might affect the scope of the inquiry of the fair trading commission. That is not so. As I understand it, Deputy Costello explained that he did not putdown the amendment as it stands and that he did not intend that this was to be a definition. He wanted it to be an explanation or an exposition of these things. The Minister will see that, even taken as a definition, it cannot restrict, and it does not restrict. The phrase is that "it shall include". It does not say it shall mean. There is a vast difference between the two.

I think that gets rid of one point made by the Minister in his halfhearted acceptance of this. The second point indicates to me a greater danger still. There is an objectionable framework built into this unsatisfactory Bill. The Bill is unsatisfactory, because it merely sets up a commission and asks them to make inquiries. They may make a report and submit it to the Minister; the Minister may or may not make an Order and the Oireachtas may or may not pass the Order. It is only then the matter becomes law, but the outcome of all these long, drawn-out inquiries by this circuitous route is an approach to the courts.

The Minister says the courts may distort the law. If they are suspect of being able to employ prejudice in favour of traders that may distort the law, they will distort the law that will have to be passed under Section 8. I understood the Minister to make that point against Deputy Costello's arguments. How do the courts operate in other matters in regard to legislation passed? The courts have the power to make decisions on such legislation. In the present instance the Minister's Bill will eventually go before these maligned courts, who again will have the power to distort. If the Minister's arguments that they are ever able or likely to distort the law are valid, it is clear they can distort these Orders confirmed by the Oireachtas.

The Minister takes amazing objection, from my point of view, to Deputy Costello's bringing in the principles of social justice. Where did this phrase first get legislative sanction? In the Constitution? The courts have in the Sinn Féin funds case laid down as a rule that they, after that case, would be the judges of what such things as social justice demand. If the courts continue to construe a Constitutionwhere they may have to decide what the principles of social justice are, why can they not construe these at the second remove if a fair trading commission has construed what in their view are the principles of social justice and have decided for or against trade practices as to whether they are in accordance with the principles of social justice or contrary to them?

I personally would like to see the phrase in and remaining in because I would like to see Orders based on those principles, so that the courts again would get the opportunity of enlarging the general view expressed in the Sinn Féin funds case.

Finally, I wish to refer to the Minister's objection to manufacturers. Deputy Declan Costello had raised here the precise point on the Second Reading, as to whether supply did or did not include manufacturers. The point was pressed several times, and people eventually spoke on the understanding that supply did include manufacturers and there was no denial of that. In column 816, Volume 134, of the Dáil Debates of Friday, 31st October, 1952, the Minister said in regard to price maintenance arrangements:

"That term is applied to agreements made between manufacturers or wholesale suppliers and retailers..."

I understand it is accepted that the word "suppliers" does include manufacturers. Why should we exempt manufacturers from this?

Mr. Lemass

They are not exempted.

Mr. McGilligan

Why does the Minister object to Deputy Costello's phrase which includes that to a greater degree than his legislation might? Why exclude them specifically. They will only come in if something in the nature of restrictive trade practice is found to be practised by them, and if such is found to be practised by them why should they not come under whatever the limited effect of this measure may be?

Mr. Lemass

So far as Deputy McGilligan's amendment is concerned, we will discuss that when we come toit and consider then whether the Bill, as I have introduced it, is not better than he proposes to make it. Let me be quite clear about my attitude to the courts in this matter. As to whether a law is in accordance with the Constitution or not is something to be decided by the courts but decisions as to whether it is desirable that petrol pumps should be supplied only to garages or should also be supplied to hotels, or whether the Guinness brown label is a fair trade practice or not, or whether the retail price maintenance of tobacco manufacturers are in accordance with the public interest, in my view the Dáil is a far better body to decide such questions than the courts of justice. Therefore, the procedure of this Bill is to have these questions of public policy decided here and, if decided here, legislation enacted to give effect to that decision. That legislation will be enforced in the courts. They will have the duty of deciding whether an individual manufacturer or trader in a particular case has violated that law or not. They can, of course, also decide whether the law as a whole is contrary to the Constitution but decisions of public policy, what constitutes the public interest in trade matters arising from decisions here, cannot be a matter for the courts.

Mr. J.A. Costello

There can be no objection to the statement made by the Minister, that what constitutes public policy is a matter for the Oireachtas alone. The courts do not interpret matters of policy. They only interpret legislation. What I am urging and what the Minister overlooks entirely because his mental attitude will not let him appreciate it, is that the courts are there to prevent injustice, and injustice may be done by the procedure proposed here, and for this purpose of seeing that injustice is not done I wish to have resort to the courts, whether by the machinery which I have suggested or by some other machinery. We will deal with that when we come to the particular amendment I have down. I put that amendment down for the purpose of tying the procedure I suggested in with the procedure of thisBill. I could suggest half a dozen other methods but I will deal with the whole matter when we come to the amendment.

I want the Minister to understand by this commission, which is a political commission, whose decisions are ultimately to be translated into statutory effect by a majority of the Dáil, that there is something entirely different from public policy and that people can be very seriously prejudiced and wrongly affected by the procedure for it and have no remedy. What I want to do is to ensure that this Bill will make people confident that they can have resort to the independent tribunals of the court if they feel they are unjustly treated by the machinery of this Bill.

Mr. McGilligan

It is a strange thing the Minister holds the view he now expresses that the principles of social justice are better under the control of the Oireachtas than under the courts.

Mr. Lemass

I did not say that.

Mr. McGilligan

I thought the Minister did say that.

Mr. Lemass

What I did say was that questions of public policy should be decided here. It does not matter what view all judges take concerning the wisdom or unwisdom of any decisions. Once we have taken them that is the law.

Mr. McGilligan

It is subject to the Constitution.

Mr. Lemass

Yes.

Mr. McGilligan

And the Constitution gives the declaration in regard to private property, in respect of the principles of social justice to the courts. That is what this Oireachtas said. The duty of applying the principles of social justice to such things as private property is in the Constitution given to the courts, and without an amendment to the Constitution this Oireachtas cannot take it away from them. That is the position we are in.

Amendment, by leave, withdrawn.

Section put and agreed to.

Section 2 put and agreed to.

SECTION 3.

Question proposed: "That Section 3 stand part of the Bill."

Mr. M.E. Dockrell

I move amendment No. 2:—

That the word "shall" be deleted and the word "may" substituted.

It is just to give the commission a freer hand in this matter. As the Minister said, this is to a certain extent experimental and the commission will be feeling their way. It would be wiser, I consider, not to tie the commission's hands, that it ought, at the request of an association, to publish rules. There may be circumstances in which it would not wish to publish rules or there might be circumstances in which they thought that the request for such rules was reasonable. The hands of the commission would be less tied by the word "may" than the word "shall".

Mr. Lemass

In my view it would not be a desirable thing at all. The purpose of Section 3 is to empower the commission to prepare fair trading rules for any trade, rules which would have no statutory effect but which may become recognised as a code of conduct for those engaged in that trade. The hope is that trade associations which are operating objectionable restrictive practices at the moment will, rather than face an inquiry under Section 6 of the Bill, voluntarily abandon those practices and come to the commission, in so far as they believe that some rules are necessary for the conduct of their trade, and to have fair rules prepared by the commission which they may adopt. It is desirable that any trade association that decides to adopt that course should know that the commission will do it for them, that it will not be merely a matter at the discretion of the commission. If any recognised or reputable trade association decides to adopt that course, they can come to the commission and request it to prepare these rules, and the commissionwill be obliged to do it. I think that if we, by effecting the change suggested by the Deputy, create doubt in the minds of trade organisations who are trading on that basis, it would be an undesirable step and would discourage the voluntary movement which I hope may emerge as a result of the passage of this Bill.

Mr. M.E. Dockrell

Surely the Minister can see that there might be circumstances in which the commission might not want to publish rules, that the association might not be a reputable one, or that the request might be a frivolous one? This alteration I propose would give the commission wider powers, as it will not be bound to do something which in certain circumstances it might not wish to do.

Mr. Lemass

The association must be one representing persons engaged in the supply and distribution of some kind of goods. It must be a representative association.

Mr. Sweetman

No, that is not the same thing. A representative association and one representing persons are not the same.

Mr. M.E. Dockrell

They might be unrepresentative of the trade and yet might represent that they were representing traders.

Mr. Lemass

The commission would be free to decide.

Mr. Sweetman

No, not on the present definition.

Mr. Cosgrave

I cannot see the purpose of the section — or, in fact, of the next three sections. In the main the experience anyone has had with any of these associations is that they publish rules for their members and these rules are designed to protect the interests of the members. In the main, membership results in a particular individual accepting these rules. That is a prerequisite of the granting of membership. Invariably the objectives are the particular matters which this Bill is designed to eliminate. Associations of that sort may prescribe rules which will prevent members sellingparticular goods below a price fixed by the association or by the supplier; it may prevent them seeking to trade in an area where another member already is trading. There is a whole variety of practices of that sort. I do not think any case has been made that these rules can assist the public, if the particular practices are not prevented by the operations of the fair trade commission. In other words, if any association complies with the requirements of the fair trade commission in connection with a supply or distribution of goods, what is the necessity for fair trading rules? Most of the regulations I have mentioned were designed to protect the members of the association rather than assist or protect the public. The activities of the commission will be directed towards preventing any abuse on the part of individuals or on the part of an association. If abuses are brought to light or if some action conflicts with the definition which it is proposed to insert in the Bill, then the association or the individual will, after the passage of the required statutory instrument here, be obliged to discontinue the practice.

Can the Minister say what beneficial result will flow from the publication of fair trading conditions or rules as provided for in Section 3 and the consequent review under Sections 4 and 5?

Mr. Sweetman

As I saw the Minister's argument for Section 3 on the Second Reading, it amounted largely to the point that it was not possible to list restrictive practices. I understand that, while I was out trying to arrange amicably certain matters which we got a bit hot about to-day, the Minister agreed to the principle that some of them should be listed, as in Deputy Costello's amendment. It seems to me that, once that is accepted, the necessity for Section 3 disappears entirely. As the section is phrased at present, it seems far more likely to enshrine restrictive practices rather than prohibit them and will not do anything whatever to prevent them. It is far more likely to set them up within limits — and within those limits those practices can easily be operated by persons engaged in the trade. Forexample, there is a well-known device that lists of people to be supplied are circulated by an association and everybody in the trade or who wants to get into the trade is on that list; but they are in a certain order, and everybody in the trade knows that you do not go beyond page three or four, as the case may be. This type of rule will be set up, and it will be very much easier for those who want to operate that restrictive practice to operate it under the type of rule set out in Section 3 than if there were no section there at all.

Apart from that, I want to add this to the point that Deputy Dockrell made. As the section is phrased, an association representing only 1 per cent. of those engaged in a trade is entitled to seek a mandatory Order. The section does not say that the association is to be representative of persons engaged in the trade, but that it is to be an association representing persons in the trade. There is a vast difference there. An association that represents only 1 per cent. would be entitled to take action, possibly without the concurrence of the other 99 per cent. So far as that aspect goes, Deputy Dockrell is absolutely right. It is unnecessary to go into his amendment on this section, as the section is a bad one and should be abandoned — particularly since we have accepted amendment No. 1, subject to drafting changes — as the only result of what is left would be the enshrinement of restrictive practices in the trade rather than their abandonment.

Mr. Lemass

We are discussing the section as much as the amendment, but perhaps that is not undesirable. While the amendment may not of itself be of greater importance, it does bring up this question of how we intend the fair trading commission to work under Section 3. May I say straight away that I do not contemplate that the drafting of fair trading rules under this section by the fair trading commission would be undertaken only where the majority of the trade so desired. I have no objection whatever to the commission proceeding to draw up fair trading rules of a non-statutory,voluntary type at the request of a minority, provided the commission are satisfied that they are a responsible minority or group who desire to have proper rules of conduct established for their trade in which restrictive practices may be prevalent.

Mr. Sweetman

As the section is drafted, there is no such proviso.

Mr. Lemass

I think the difference between myself and Deputy Sweetman, if I understand his point of view, is that, while I am anxious to eliminate from trade every objectionable restrictive practice, every practice which, on examination, is held to be contrary to the public interest, I recognise the possibility that there are some practices which, even though restrictive of competition, would be held, after objective examination by an impartial commission, to be desirable and in the public interest. I think Deputy Costello came to the same conclusion when drafting his amendment because that is the implication of his proviso. He recognised that in some cases practices which might be generally condemned might nevertheless be justified in the particular circumstances of an individual case. It is the job of the body carrying out the examination to decide whether, in fact, that justification can be fairly advanced and should be accepted in a particular case.

Let me tell the House how I think this will work. Suppose we here at the moment are members of a trade association engaged in the sale of some goods and we have rules which confine membership of our association to traders who have stores of a certain size or which contain certain equipment or who employ workers with particular qualifications, rules which they can justify, whatever their motive in making them, on the ground that they eliminate distribution costs or ensure better service to the public, or in some other way serve the public interest. We would not know now whether we were going to be brought before the fair trading commission, made the subject of a public inquiry and have new rules forced on us by law. We would not wish that to happen. Wewould prefer voluntarily to comply with the public interest in the matter and therefore it is desirable that we should have this channel out of a public inquiry; this right to go to the commission and to say: "Here are our rules. Do you think they are objectionable or not? If you think they are, revise them in the way you think they require to be revised in the public interest and we will undertake to apply voluntarily in our trade the rules you think should be applied or make the changes in our existing rules which you think should be made."

That is the idea behind Section 3, that right of voluntary action to trade associations who want to get their record clear and to adjust their rules and regulations in accordance with the views of this commission as to what constitutes the public interest. I think it desirable that that means should be available to them, rather than that the only method by which these practices could be changed under the Bill should be by a process of a public inquiry leading to legislation. If that is so, I think it is desirable that any group of traders who want to get that improvement in their rules and regulations made voluntarily should have an assurance that, if they go to the commission, the commission will not refuse to hear them. That is why I prefer the word "shall" to "may".

An Ceann Comhairle

Perhaps it would be better if Deputies spoke on the amendment, because there is an amendment later on to delete the section altogether.

Mr. M.E. Dockrell

The Minister has made a case for the free access of a trade association to the fair trading commission and that is perfectly reasonable, but the reason I seek to alter the word "shall" to "may" is that it is not the access of the association to the fair trading commission that anyone wants to interfere with but the mandatory obligation on the fair trading commission under this section to publish or make rules when in fact it may not, for a variety of reasons, be desirable in the public interest to make rules for the particular section who come before it. Underthis section, the commission will have to do it, even if the body is entirely unrepresentative and if there are reasons which would, in the ordinary way, preclude the commission from wanting to make these rules. I think the word "may" gives the commission all the powers it needs and it does not force it to publish rules.

Mr. McGilligan

It seems to me that the point Deputy Dockrell has made is clearly a good point under the circumstances of the draft and it could easily be met by putting in clear language what is obviously the Minister's intention. He wants to have it voluntary if the movement is made by a body of people who really represent people engaged in supply, not necessarily being a majority. The Minister's interjection seemed to indicate that he wanted it to be the decision of the commission whether or not the association did represent persons engaged in supply. That can be very easily met —"an association who, in the opinion of the commission, represent people engaged in or who are a representative body of the people engaged in a particular business". If that were the case, I understand that Deputy Dockrell would not be bothering about whether the word was "shall" or "may"— so long as the people who put the commission in motion are really representative.

I have got a new light on this Bill. I thought the Bill was not worth much, but it has receded in any estimation I had of it since the Minister's last speech. He contemplates under this a whole heap of what I call whitewashing inquiries. It was represented to us last October that the Minister was out to smash trade rings, and he spoke several columns of the Dáil Debates with regard to all the restrictive practices which existed in the country, about which most of us knew, and about all of which he knew. These were the things he wanted to smash. They were things we all had a clear idea of, and things which were contrary to the public interest. Now it appears that this is to be used mainly for one purpose — to enable a group of traders or people engaged in supplyinggoods to go before the commission, and to get them to say: "Your rules are grand. They are all right."

Mr. Lemass

Or all wrong.

Mr. McGilligan

The Minister made the point on their being all right. He wanted to have it declared that the rules of certain people were all right.

Mr. Lemass

If amended.

Mr. McGilligan

Why should they come in, if they are all right? Presumably, then, there is no public annoyance or, if there is annoyance the Minister is going to say that that annoyance is misdirected, and he wants these people whitewashed. I did not think that was the purpose of this piece of legislation. It seems to be ineffective because again I understood that what it aimed at, in the end, was making the buying and consumption of goods easier for the community, that it was aimed at cheapening supplies and services of goods to the community. It is notorious that one group of people who cannot move the commission are the consumers, and that the only people who can move in this are people who are in some way in the general line of supply, and who are irritated by something done above them in the line of supply.

There is an old saying about big fleas having lesser fleas on them and apparently one must be a flea to put this machinery in motion. The people who are bitten, however, cannot do anything and that was one of the great objections I had to the section. I would have moved in the opposite direction from that taken by Deputy Dockrell, in the direction of giving a right to a body of consumers, if they could make it clear to the commission that they were really a representative body and not merely some people who were annoyed in a particular small area over something which might not be general through the country. As it is, I agree with Deputy Cosgrave that neither Section 3, 4 nor 5 is worth anything except in so far as it may lead eventually to some sort of Order being made later under which people can be prosecuted.

Mr. Norton

I think the Minister might be well advised to look at Section 3 again to see if he could not find a more sensible approach to the problem. If the commission feels that a body really represents persons engaged in the distribution and supply of goods and they are anxious to make fair trading rules for the association then under the terms of the amendment they may make these rules or they may not do so until they are satisfied that the body is really representative and that it is in the public interest to do so but as the section is drafted it would appear that the commission must make fair trading rules. That would mean that even if the application is made by a minority of suppliers the commission must make these rules. It is conceivable, firstly, that an application from a minority of suppliers should not be entertained. They should be told to run away, get themselves organised properly and come back when they speak for a representative body of suppliers and that then the commission, if it deems it prudent to do so in the public interest, will make fair trading rules for them.

Mr. Lemass

Does the Deputy not think that it is a minority in the trade who may want to smash restrictive practices?

Mr. Norton

The Minister's case for the section was that he wanted a body to go into the commission and to be able to say to them: "Here is what we have been doing. Will you make fair trading rules for us and take the necessary steps to have them put into operation?" That was the Minister's case for the section. I do not think a small body, not really representative of suppliers or distributors, should have the right to appeal to the commission to make fair trading rules for that trade.

Mr. Lemass

I think they should have the right to go to the commission and get fair trading rules drafted.

Mr. Norton

Though they are not representative, the Minister wants to ensure that they will have the right to get rules made. Even if all the members of the commission take the view that in the public interest and until thewhole position clarifies itself in respect to the supply of particular goods, it is not desirable to make any rules in that particular case, nevertheless under the section as drafted, once an association representative of a microscopic minority seeks to get rules made, the commission must entertain the application from that unrepresentative minority, and is bound, willy-nilly, to formulate rules. I do not think the commission should be put in that situation. If the section is drawn in such a way that the commission may do it, the initiative rests with the commission; if they think it desirable to do so they may do it. If the word "may" is inserted in the section, they may not do it, if they do not think it desirable to do so.

I do not think that a body which represents only a very small group who may want to get away with something very quickly should be put in a position to coerce the commission.

I could understand a representative body of people going in and saying: "We want to get some decent rules prepared and published. Let us draw them up so that they may get general acceptance." I think that is a reasonable approach if the body is really representative provided the commission has the right to say: "Look here, in the public interest we do not think it desirable that we should formulate rules." The commission should have the right to say that, but under the section as drafted the commission has not that right. The commission must prepare rules, under the section as drafted, once an application is made to it by a body no matter how unrepresentative it may be. I do not think the commission should be jockeyed into the position that it must prepare rules where an unrepresentative body applies to it to do so.

Mr. Lemass

I do not think this amendment is important enough to spend much time arguing it. If that is the point which Deputy Dockrell has in mind, a point which appears to arise in his next amendment, and if accepting this amendment would cover the next amendment and keep the section so framed that the commission mayrefuse to hear people who, they think, do not represent anybody then I am prepared to meet the Deputy. Let us, however, be quite clear. I contemplate that under this section approach to the commission may often be made by some body which has been denied a rate of discount or freedom of access to some things which some particular association is confining to its own members. I should not like by any means to see the section so framed that only a majority of traders in a particular trade would have the right to apply to the fair trade commission to prepare and publish rules. It is far better that the commission should have the right to have regard to the character of the applicants.

Mr. Norton

Does the section not contemplate an association going there?

Mr. Lemass

Not an association of all the persons engaged in the trade.

Mr. Norton

The Minister talks about people who do not get discount but that is not the background of the section. This section speaks about organised sections —"at the request of an association representing persons engaged in the supply and distribution of any kind of goods." I understood from remarks the Minister made earlier that he contemplated a situation in which a really representative body went in to get fair trading rules.

Mr. Lemass

That is possible.

Mr. Norton

I want to make sure that the association is representative in the view of the commission, of those engaged in the trade but that the commission, nevertheless, shall have the overriding authority of saying: "We are not going to make rules in this case because we do not think it is prudent in the public interest to make rules." Under the section as drafted, a trade association might be able to get the commission to make rules in which the public interest would be best served by leaving the field open in a given set of circumstances and not sealing as immutable certain practices which might be against the public interest. I am willing to allow the commission tomake rules, if they think it is wise to do so, but they should not be compelled in all circumstances to prepare rules even when it is not in the public interest to do so. I think if the Minister looks at the whole section again, he might get a better phraseology.

Mr. MacCarthy

Might there not be a body of small traders who are being squeezed by restrictive practices who would like to approach the commission?

Mr. Lemass

That point would arise under the next amendment, but I do not think it would arise under this.

Mr. Sweetman

I think the Minister will find that there is far more likelihood of a body of small traders being squeezed where rules are drawn up, than if the field is left open, because it is quite inevitable that if rules are phrased by the medium proposed in Section 3 that these rules will be phrased and based on the practices of the larger trader.

Mr. Lemass

The Deputy has the outlook that trade should be carried on without any rules at all?

Mr. Sweetman

The Deputy has not but the Minister is trying to have it both ways. He says that, first of all, each individual thing must be gauged on its own. Then he says: "No, an individual case is not to be gauged but is to be dealt with by a general rule." The Minister has got to make up his mind which it is to be.

Mr. Lemass

We are dealing with non-statutory rules, something which can be adopted as a code of conduct.

Mr. Sweetman

If I were to say that we were dealing with non-statutory rules, I am sure the Minister would tell me very quickly that that was a silly lawyer's point because they are non-statutory rules. That is the technical aspect of it. They are certainly going to be the basis of any report that is made.

Mr. Lemass

No.

Mr. Sweetman

Otherwise, the section has even less sense than we think it has.

Mr. Lemass

It has no relation to the inquiries in Sections 6 and 7.

Mr. Sweetman

If rules have been laid down under Section 3 and an inquiry is ordered, is it suggested that the inquiry is not going to fall within the rules already laid down in Section 3?

Mr. Lemass

Why should we inquire into rules that we have made ourselves? If fair trading rules are being observed, then the people concerned will have no reason to worry further.

Mr. Sweetman

It is entirely technical to describe them as non-statutory rules because they are rules which have not got the force of statute, but anybody can make them have the force of statute by going through statutory procedure.

Mr. McGilligan

A report can be founded on the non-observance of the rules?

Mr. Lemass

Yes.

Mr. McGilligan

If the commission has drafted the rules to say they are non-statutory rules is to blind the Dáil but they can evolve into statutory orders.

Mr. Lemass

Not under Section 3 if the rules are kept.

Mr. Sweetman

If you have a report under Section 6 in respect of trade for which rules have been made under Section 3 you are not going to make a new set of rules under Section 6.

Mr. Lemass

That would be a very foolish procedure. For instance, if the Irish Motor Traders, who are now operating non-statutory rules said: "O.K., we will clean up our own house" and go to the commission and say: "Here are the rules operating at the moment," the commission would examine them and would say in what way they were contrary to the public interest. After examination, the fair trade commission says: "Here are rules which we think are unobjectionable in the public interest and which you can voluntarily adopt". If they do that that ends the matter. Thereis no question of any penal action arising so long as these rules are observed. Subsequently there may be a complaint that these rules are not applied to the trade.

Mr. Cosgrave

Does not that mean that they become statutory rules?

Mr. Lemass

Only if the Dáil decides to make them so.

Mr. Sweetman

When the commission makes its report it is going to make the same report under Section 6 as under Section 3.

Mr. Lemass

We do not contemplate that we are going to have a whole series of enactments setting out prohibitions upon restrictive practices for every possible trade. That would be an impossible task for the Dáil to face. What I am expecting is that the commission will be forced under Sections 6 and 3 to deal with the restrictive practices which are of major importance and which are so objectionable in their character that the legislature should take notice of them. In respect of these there will be a report under Section 7 and subsequently enactment of legislation but for a whole lot of trades I think it should be possible to get by pressure of public opinion the voluntary adoption of unobjectionable practices. There is good reason to hope that if that is done these voluntary rules will be generally applied.

Mr. McGilligan

Why should we worry about those people? We should get after the people in respect of whom numerous and various complaints were made to the Department of Industry and Commerce.

Mr. Lemass

Is it not possible that some of the people against whom complaints have been made will voluntarily abandon the practices in respect of which they have been complained? Is it not desirable to give them that opportunity, recognising that within the trade it is necessary to have some rules which manufacturers, wholesalers, and retailers can be aware of?

Mr. McGilligan

Why this mania for rules if the trade is all right?

Mr. Lemass

I tried to make the position clear, but some people do not seem to want that.

Mr. McGilligan

We may have been misled by the Second Reading speech.

Mr. Lemass

There are two ways of getting rid of objectionable trade practices——

Mr. McGilligan

There was only one way in the Second Reading speech and that was to smash them.

Mr. Lemass

——one is to get the people who adopt these objectionable practices to abandon them voluntarily and the other is to compel them to abandon them if they do not do it voluntarily. I want to leave the two ways open.

Mr. Sweetman

I failed to make my point of view clear to the Minister. It was probably my own fault. Under Section 6 there is a particular way in which existing trading rules will be investigated. It will be decided whether those rules are unnationally and fairly restrictive. There is a specific procedure set out under Section 6. There is a mandatory provision in Section 6. There is to be an inquiry into those rules. My objection to Section 3 is that it by-passes the particular provisions in regard to an investigation of the rules which are provided for in Section 6. If the Minister wants to have the method of dealing with it in two ways, then he should make it mandatory on the commission to deal with any application under Section 3 in the same way in which they dealt with it under Section 6.

Mr. Lemass

You are now against Deputy Dockrell's amendment. He does not want to make it mandatory.

Mr. Sweetman

His argument is that he does not want to make it mandatory if a person who does not represent anybody comes along. That is an entirely different question, and it should be left to the commission. I believe that Section 3 wants to avoid the searching inquiry that is stipulated in sub-section (3) of Section 6. Without that searching inquiry into thewhole aspect of it, there will be a far greater likelihood, therefore, of rules being brought in under Section 3 that will be unduly restrictive.

Mr. Lemass

Nonsense. Is it not far better that a man should reform voluntarily?

Mr. McGilligan

Is that what this Bill is about?

Mr. Lemass

I hope so.

Mr. McGilligan

That was not the intention on the Second Reading.

Mr. Lemass

It is the intention of Sections 3, 4 and 5.

Mr. Sweetman

The intention of Section 7 is to bring in a report which becomes statutory. The intention of Section 6 is to find the facts by a particular method.

Mr. Lemass

Sections 6 and 7 hang together.

Mr. Sweetman

Section 7 relates to the action that is taken on the facts, as found. Section 6 is for the purpose of finding the facts. Section 3, on the Minister's own argument, is to get unfair practices voluntarily abandoned— to get them abandoned after what is not a full investigation.

Mr. Lemass

That is right. Why should we have it if they are voluntarily abandoned?

Mr. Sweetman

Because it is only on a full investigation that you can decide whether they are fair or unfair.

Mr. Lemass

The commission can have as full an investigation as they want.

Mr. Sweetman

No, no — as one side only wants. Suppose an inquiry is ordered under Section 6 and the commission decide, under Section 6, that the restrictive practice is perfectly fair. Then there is no further action because if the restrictive practice is not against the national interest it is O.K. and it is left under Section 6. But there are opportunities under Section 6 of advancing arguments that therestrictive practice is against the national interest.

Mr. Lemass

The same opportunities are there under Section 3.

Mr. Sweetman

No they are not.

Mr. Lemass

Read Section 4. It contains exactly the same conditions.

Mr. Sweetman

They are not going to make the inquiry.

Mr. Lemass

Sub-section (1) of Section 4 reads as follows: —

"Before making fair trading rules the commission shall cause to be published in such manner as they think fit notice of their intention to do so and shall give to any person desiring to make representations in relation to the making of the proposed rules an opportunity to do so; and the notice shall specify the time and manner in which representations are to be made."

Mr. Sweetman

Certainly, but look at the difference between that and sub-section (3) of Section 6.

Mr. Lemass

What is the difference?

Mr. Sweetman

Sub-section (3) of Section 6 reads as follows: —

"An inquiry shall be held in public save in so far as, in the opinion of the member or members holding it, private sittings may be necessary to avoid any disclosure of confidential information which might materially injure the legitimate business interests of any person."

In one case there is to be mere advertisement and representations made and in the other case an inquiry shall be held. If the Minister proceeded in exactly the same way——

Mr. Lemass

Why should we hold a public inquiry into the practices of people who abandon these practices?

Mr. Sweetman

That is begging the whole question. The whole purpose of the commission is to decide whether a practice is fair or unfair. If it is unfair, the Minister said on the SecondReading that he wants to terminate it. I want to be sure that, in the examination as to whether it is fair or unfair, there is a proper examination. I do not think Section 3 can provide that, and I think that the effect of Section 3 is to provide that the commission will have their hands tied if they are asked to hold a similar inquiry under Section 6. Therefore, if you are going to have Section 3 at all, you should have it in exactly the same fashion as Section 6.

Mr. Cogan

It is difficult to know whether or not Deputy Sweetman is merely trying to kill time. Surely he realises that while Section 3 provides for the legalisation of the rules of an association, after examination by the commission, Sections 4 and 5 provide for further examination of these rules. Section 4 provides——

Mr. Sweetman

I presume the Deputy realises that he is contradicting exactly what the Minister has said?

Mr. Lemass

It is exactly what I said.

Mr. J.A. Costello

He said that it is legalising the rules.

Mr. Cogan

I think it is quite clear that Section 5 also provides that the commission will keep under review the rules established under Section 3, and if they are satisfied that these rules are in any way unfair or operating unfairly the Minister can take appropriate action under the subsequent section. Therefore, there is no question whatever, as Deputy Sweetman suggested, of the hands of either the commission or the Minister being tied by this particular section. All it seems to do is to regularise the operations of a particular association. It might be no harm if the legal profession were brought under this Bill and their rules and operations reviewed with a view to regularising and reforming them. I think Deputy Sweetman is simply trying to kill time. Surely the first step in regard to reforming and improving——

Mr. J.A. Costello

Is this speech in order on the amendment?

Mr. Cogan

——certain practices in an organisation is to reform and improve its rules. There is an opportunity of doing that under Section 3.

Mr. Lemass

May I say that I am prepared to accept amendment No. 2, if Deputy Dockrell withdraws amendment No. 3? We are discussing the two together. Amendment No. 4 is not necessary if amendment No. 3 is accepted.

Mr. M.E. Dockrell

I am prepared to accept the Minister's offer.

Mr. Lemass

When I say "accept" I mean "accept in principle" because of the matter of drafting.

Mr. M.E. Dockrell

What I am afraid of is some circumstance such as an association applying to the fair trade commission.

Mr. Cosgrave

I think the section is bunched now. That will knock the ginger out of the section altogether— not that it matters. I think that whatever hope it had——

Mr. Lemass

No.

Mr. M.E. Dockrell

I do not think it knocks the sense out of the section. It gives the commission the right, in the face of certain requests, to refuse to concede to them. I was in the course of saying that there might be circumstances in which an association would apply for fair trading rules and would have those rules endorsed, and that then there might be some minority section of that association, or some group which would break away from it, which would try to get rules accepted by the commission which would not necessarily be in the public interest. It would be advisable, I think, to give the commission power to deal with such a request in the quickest way possible, and not put them, perhaps, to the trouble and expense of drawing up a new set of rules.

Mr. Lemass

O.K.

Amendment No. 2 withdrawn.

Amendment No. 3 not moved.

Mr. J.A. Costello

I move amendment No. 4: —

In line 21, after "goods" to add: —

Such fair trading conditions shall be prepared and determined with due regard to the necessity for the prevention of restrictive trade practices, the maintenance of free competition in the supply and distribution of such goods: and the safeguarding of the public interest.

This amendment follows on the description or definition, if you like to call it that, which I had proposed in the first amendment. I object to Section 3. I think it is entirely unnecessary and can be harmful, but if it is in the Bill I think there should at least be a direction given to the commission that, in preparing and formulating and publishing fair trading rules those rules should be "prepared and determined with due regard to the necessity for the prevention of restrictive trade practices, the maintenance of free competition in the supply and distribution of such goods; and the safeguarding of the public interest".

I want this commission to have as its task, if it be given the task and I hope it will not, that in formulating fair trading rules there should be some description of what are fair trading rules. In the Bill there was no definition of restrictive practices. This section introduces a new phrase — fair trading rules. No one knows what they are. There, again, they will be subject to the peculiar views of the particular commission that may be there. One commission may consider or may think that it has one set of fair trading rules. Another commission, in a week's time, may think these were not fair trading rules. The commission have no headline, no directive and no principle to go on. My amendment proposes to give them some headline and some principle on which to act. Much the same purpose is behind this amendment as that which I had in proposing in an earlier amendment a description of fair trading practices.

The section, as it stands and as the Minister has stated, and as the hedgelawyer, Deputy Cogan, has misstated, does not give legal effect to fair trading rules. That is quite clear, except indirectly through portion of the machinery of the Act, where as Deputy McGilligan has pointed out they will obtain a certain sanction using that as a neutral word.

As the section stands at the moment, it can be operated at the instance merely of people engaged in trade, manufacture or industry, alone or in combination. There is nobody on the commission to watch the interests of the consumers or the public. The Minister says that the fair trading rules may be formulated voluntarily. But that will be done without anybody being there to represent consumers or the public and put their case. Of course, I realise that Section 4 provides that an opportunity may be given to persons interested, but there is nothing in the section to make it mandatory on the commission to take the slightest notice of any representation that may be made, no matter by whom. Therefore, it comes down again to the fact that there is an uncharted course, with complete liberty of action allowed to this political quasitribunal.

Earlier to-night the Minister referred to the function of the Dáil and the Oireachtas generally in reference to matters of public policy. The phrase he used, perhaps, as we say in court, per incuriam,implied that the commission, in considering and formulating the publication of fair trading rules, would give their imprimatur that the fair trading rules were unobjectionable in the public interest. This political body will say that in reference to these fair trading rules. The consumers and the public will have no say. That is objectionable in the public interest. They are to take over a function which the Minister will not give to the courts to safeguard the public interest. The commission is to formulate these fair trading rules with no principle to direct them and no headline to follow. The purpose of my amendment is to secure that they would have that directive.

Mr. Lemass

My position is that I do not think the amendment is really necessary if we proceed on the commonsense assumption that we will have at all times Governments which in the matter of the appointment of personnel to bodies of this kind, will act with responsibility and will choose them from an intelligent section of the community and not from our mental homes. If there is thought to be the danger at some stage of having a commission of people from our mental homes with straws in their hair, and that it is necessary to protect the community against that, I have no objection to putting in safeguards against that remote possibility. The general provision is that in the preparation of fair trading rules the commission shall aim at the elimination of the practices which will be set out in the Bill following the adoption of Deputy Costello's amendment No. 1. I think it is almost inconceivable that any commission likely to be appointed would not have that aim. I have no objection to making it a statutory obligation, but I think that for the present we had better leave it over.

Mr. McGilligan

The Minister speaks of the type of person to be appointed to this commission. Will he not say that it necessarily follows from that that those who paid £84,000 for a project that had to be sold for £22,000 had straws in their hair?

Mr. Lemass

That was on a social service, on employment for the construction corps.

Mr. McGilligan

Tourist Board property sold for one-tenth of what it cost.

Mr. Lemass

You stopped work on them and sold them before they were half finished, and then, before they were sold, went down the country and said they were worth nothing.

Mr. McGilligan

Were we not right?

Mr. Lemass

In saying that you were not discharging your function as the custodian of public property.

Mr. Sweetman

Anything we sold was sold at public auction.

An Leas-Cheann Comhairle

Thathas nothing to do with this amendment.

Mr. McGilligan

It has to do with the people.

Mr. Lemass

I know where I should look for the straws in that instance.

Mr. McGilligan

It is the truth.

Mr. Norton

As regards one section of the amendment, I see certain dangers in it. I agree with the first portion of it, but I do not think I would travel with Deputy Costello as regards the second portion of it which speaks of "the maintenance of free competition in the supply and distribution of such goods." I agree with the last portion of it which deals with the safeguarding of the public interest. I see a certain danger in the second part of the amendment. Suppose there was a general practice in a particular industry or a particular distributing service that all shops in an area or particular town agreed to close at 6 o'clock in the evening, and that somebody there said they were going to keep open until midnight——

Mr. J.A. Costello

I think I can meet the Deputy's objection by saying that the word "fair" was left out of the amendment inadvertently. The amendment should have read "the maintenance of free and fair competition". If the Deputy will look at my amendment No. 1 paragraph (a) he will see that I there use the words "free and fair competition". The word "fair" was inadvertently omitted here.

Mr. Lemass

What I am contemplating is that there will be inserted in this section words which will say that, in preparing these fair trading rules, the commission will have the aim of preventing the operation of the restrictive practices which will be defined earlier in the Bill. That, I think, is what Deputy Costello wants. That, I think, is what Deputy Costello has in mind.

Mr. J.A. Costello

I want to make it clear what I am at and what I think we are all at. I want to keep fair competitionfrom being impinged upon by these restrictive practices. You have big combines who will not allow small traders to work together. I regard as free competition that they should be allowed to work notwithstanding the big combines. That is my notion of free competition and fair competition, and it is to that that I aim in the definition or description I have given of restrictive practices. In this clause I left out the word "fair" inadvertently. That is what I am aiming at. I am also aiming at this — I do not want a particularly big combine to buy up a certain line of goods from a particular manufacturer, under-sell it, and then prevent that man from selling it at a fair price, having regard to the cost of production. It will work both ways — in one case the small trader prevented by the big trader from freely carrying on his trade and, in another case, the big man coming in and getting one line of manufacture out of a factory, under-selling it, and preventing that manufacturer from ever selling a halfpenny worth of those goods again. That is what I mean by that phrase.

Amendment, by leave, withdrawn.

Amendment No. 5 not moved.

Question proposed: "That Section 3 stand part of the Bill."

Mr. McGilligan

I take it that when the word "supply" is used in this section it includes manufacturer.

Mr. Lemass

Supply by manufacturers.

Mr. McGilligan

It will cover the passage of goods from the manufacturer to the wholesaler. That is the first thing. The second thing is: Deputy Costello's amendment which has just been withdrawn would allow organisations representing interests of consumers or the public to make representations.

Mr. Lemass

Any person — there is no limitation in Section 4, which relates to this, on the persons who may make representations.

Mr. McGilligan

I am talking about the people who start the commissionon its inquiries. As far as that is concerned, except they do it on their own initiative, the only people who may move them are those who represent those engaged in the supply and distribution of the goods. I thought the idea at the back of this was to make things easier for the consuming public. The only effect now of the section is, outside the commission moving on their own initiative, that, say, a trader or group of traders who get annoyed at something done in the chain line above them from the manufacturer down, can make representations and may move the commission. I thought it was the intention to give people who were affected in the end by these restrictive practices, namely, the consuming public, a right.

Mr. Lemass

There is nothing to stop them. They can move the commission to initiate action.

Mr. McGilligan

They cannot. How can they?

Mr. Lemass

By writing a letter.

Mr. McGilligan

No, they have not any power. The section says "at the request of an association representing persons engaged in the supply and distribution of any kind of goods,..."

Mr. Lemass

Or the commission on its own initiative.

Mr. McGilligan

I said outside the commission on its own initiative.

Mr. Lemass

That is how the public will work.

Mr. McGilligan

Outside their own initiative, the only people who can make the commission move are people engaged in supply and distribution. I think that is wrong. The Minister says the people can write letters. Much good that is going to be. I do suggest there ought to be some provision made to enable representative people to move the commission.

Mr. Lemass

Where do you get those?

Mr. McGilligan

There are consumers' associations here, there and everywhere. You may aid them tospring up, and it would be a good thing if you did aid them to spring up.

Mr. Norton

Amendment No. 9 seeks to get that point into Section 6.

Mr. Lemass

From my experience of this matter, every day since this Bill was circulated I have received a very large number of letters complaining about different trade practices. Some appear to be serious complaints, some frivolous or unfounded. There must be some sieving process. There is only one that I can see, that is, by letting the commission decide the complaints that they will investigate or, under Section 6, letting the Minister decide what complaints he will refer to the commission, knowing that he has to answer here.

Mr. McGilligan

We have now put in the word "may" in the section, so that the commission need not, are not to be compelled to move.

Mr. Lemass

By an association.

Mr. McGilligan

If you are allowing an association at least to approach them with the hope of getting them to move, why confine it to an association engaged in the supply and distribution? I do not care what the formula may be, how rough and ready it may be or how it may seem to include folk who may be putting forward vexatious complaints. The commission is the boss now. It is only "may", not that they shall be.

There is another objection to the section. I think the section never was any good, but of course, it is now dangerous. I gather from the Minister's speeches here that what he foresees of the use to be made of this section is the regularising of rules already in operation by various trading associations. I do not see why they should be regularised at all. I do not see why they should be given the sanction of the commission. It will be a sanction when they describe them as fair trading rules, and the commission may take a view of it at one time and, when they see the rules in practice afterwards they may not appear to be so good. It is astrange omission. The commission is given power to review how the rules may be observed but not given power specifically to review the rules. That appears to be an omission. What is the necessity for sanctifying these rules? If rules appear to be all right, that is all right, pass them but do not publish those as fair trading rules. If a group of people once get a commission to say that these are fair trading rules then they are protected from any sort of action thereafter. They can always plead the commission's sanction. I do not think that should be given to them. Let them operate them if they have operated them up to date; let the commission say: "It would be better if you put in such and such a change," but I do not see why formal sanction should be given to them and that they should be described as fair trading rules. That is a danger.

Mr. J.A. Costello

As I have indicated on the Second Reading and to-night, I have strong objection to Section 3, the principal one being that I believe it will be operated for the purpose of giving sanction, not statutory, but some kind of sanction by reason of the fact that the commission has given its benediction to rules which in fact may be restrictive trade practice rules.

A commission of this kind should not be left on its own to decide a matter of that kind. They should not be judge and jury, operating without anybody assisting them by way of defence or prosecution. What will happen is this: an association of traders will come in before this commission and say, "There are our rules. Will you give it your benediction?" Reading down the rules the commission may say, "That looks perfectly fair. That is grand. O.K." They go out as fair trading rules and there is nobody before that commission to point out a particular rule and to show what is really behind it although on its face it appears to be perfectly reasonable. There is no advocatus diabolibefore that commission. They have to perform a whole series of functions themselves. They have to investigate the rules; they have to adjudicate upon the rules and to publish the rules.

Mr. Lemass

They have to advertise the fact that they are going to hold an inquiry.

Mr. J.A. Costello

I am perfectly aware of that. Somebody may come forward and say that they are representatives but there is nobody whose job it will be to root out and see is there anything wrong with these rules which appear on their face to be good rules. That is why I object to this commission in reference to Section 3 and in reference to the entire procedure under this Bill. It may well operate to give sanction to rules which may readily and easily become legalised restrictive practices.

Mr. Sweetman

There will be no inquiry under Section 4.

Mr. Lemass

In the ordinary sense of the term the commission must publish the fact that they will investigate.

Mr. Norton

Would the Minister explain the position in relation to the fair trading rules once they have been made? Section 3 enables the commission on its own initiative or at the request of an association representing persons engaged in the supply and distribution of goods to prepare and publish rules which are referred to as fair trading rules. Suppose that is done in the month of March. The rules are published and are then current. In the month of June it is discovered that the rules are, perhaps, unduly restrictive or are drawn up in such a manner as to permit certain abuses. Where has the commission power under Section 3 or under Section 4 to revoke in whole or in part the fair trading rules made under Section 3 or Section 4? There is power under Section 5 to keep the rules made under review. Suppose the rules have been made, are being observed, and that there is no departure from the operation of these rules but the commission subsequently discovers it is desirable to amend the rules, under what section have they power speedily to alter the rules they have made should they find it necessary to do so in the public interest?

Mr. Lemass

On that I am advised that the commission will have power to amend the rules. A commission which is given power to makes rules in a casesuch as this is ipso factogiven power to amend them. We have, of course, discussed this.

Mr. Norton

Is the Minister fortified by high legal authority on that?

Mr. Lemass

That is right. We have first to discuss the section as a whole. May I say that I on my part provided for its insertion in the Bill because I recognised that if we intend to clear up the situation in respect of trade practices, we have to strike a balance between doing a good job and doing that job quickly. I do not think we can do it very quickly. Having regard to the complexity of trading arrangements nowadays and the desire not to change things until one is certain that one is changing them for the better, it is wiser to proceed slowly rather than proceed in a slap-dash manner.

I am hopeful — I will not put it any stronger than that — that the most expeditious results will be secured through this section because of the general desire of traders in organised associations to avoid the possibility of their being brought into a public inquiry under Section 6, by proceeding to get their rules drawn up in consultation with the commission so that the objectionable feature of them can be eliminated. It does not seem to me that there is any danger there at all, proceeding on the assumption that in many trades rules are necessary in order to enable a trade to be conducted at all and frequently have the effect of reducing the cost to the public or giving the public better service or some other advantage in the public interest. If that is so it is better that we should have this organisation for the preparation of these rules concerned solely with the public interest rather than that the rules should be left to the trading associations themselves which bodies would inevitably approach them from the point of view of their own particular interest. This Bill would be very slow in producing results if it was to operate solely by the process of public inquiry followed by legislation. It is because there is a desire to get more expeditious improvement of the situation that I think it is a good idea to have this provision for voluntary action in it.

Mr. Sweetman

The Minister must realise that the most expeditious way of all would be to define them in the Bill.

Mr. Lemass

I think that would be the most objectionable way and the one that would have unforeseeable results.

Mr. M.E. Dockrell

I agree it would be a great mistake not to give the associations and organisations engaged in various trades an opportunity of coming before the fair trading commission. I have some experience of commercial matters and I know that there are many firms and associations which genuinely do not know at the present time whether certain rules they have in their various organisations may or may not contravene this Bill or the spirit of the Bill. It is a very difficult matter to define what is a restrictive practice. We know that from the reluctance there is on the part of the Department to define them.

How much greater is the difficulty on the part of businessmen to know exactly whether certain things will or will not contravene fair trading conditions? I think it is very desirable that the business community should be given this opportunity. I do not think this House wishes the business community to be brought forcibly before any type of commission if it is possible to permit them to go voluntarily before it and come to an amicable agreement. There is the further point that this Bill is the first step we have taken in an endeavour to go into the question of restrictive practices and trading conditions generally. I think we will have to proceed very carefully because I am sure that nobody wishes to upset unduly recognised methods of trading provided such methods are fair and in the public interest.

Mr. Cogan

I am glad to know that Deputy Dockrell, as a practical businessman, is in direct conflict with the views and opinions expressed by Deputy Costello. Legal members in this House like to have a conflict about everything requiring legal interpretation. The practical businessman seeksto have matters of this kind adjusted in a sane manner and with the greatest possible expedition.

Mr. M.E. Dockrell

Do not try to make mischief.

Mr. Cogan

Deputy Dockrell approves of this section. This section provides an opportunity for any association of businessmen to come before the commission and get authoritative sanction for their rules. Deputy Costello sought to criticise me for talking about legalising the rules but he himself admitted that this section would give such rules authoritative sanction. It is merely a lawyers' quibble as to "legalising" and giving what amounts to legal authority to rules as provided under this section. I move to report progress.

Progress reported: Committee to sit again.