When progress was reported last night, I was complimenting Deputy Dockrell on having so neatly and so completely demolished the case made by Deputy Costello against this section. As a sane and sensible businessman, Deputy Dockrell realises that most people like to avoid undue publicity, trouble and fuss, and if a businessman is a member of a trade association, as many businessmen are, he would like that trade association to be run in accordance with established law.
Restrictive Trade Practices Bill, 1952 —Committee Stage (Resumed).
Question again proposed: "That Section 3 stand part of the Bill."
Deputy Dockrell says: Timeo Danaos et dona ferentes.
He would like to bring the rules of that association within the terms of the Bill as speedily and as easily as possible and this section facilitates citizens in so doing. The members of the legal profession would like to do it in another way. They would like to have each citizen put in the witness box and there cross-examined, browbeaten and cross-heckled until he does not know whether he is a businessman, a farmer or a criminal.
I should like to ask the Minister for information on one point that was discussed here last night. The Minister made the point that under Section 3 he visualised that an application might be made by a very small association that was being squeezed out, so to speak, by bigger ones. Is it not more likely that an application of that sort would be made under Section 6 rather than under Section 3? The Minister's argument earlier was that Section 3 was more likely to be used by an association representative of the bigger part of a trade which wants voluntarily to put its house in order. The small man whois being squeezed out, to whom the Minister referred, would be more likely to come under Section 6.
I think that is very likely. I also think it probable that representation by members of the public or by organisations of consumers, such as were mentioned here yesterday, will be made under Section 6. It is almost inconceivable that members of the public who feel that there is something wrong which should be rectified, would proceed under Section 3. That, I think, is also likely to be the case where a minority of traders feel aggrieved by certain practices.
Therefore the point whether the association is representative or not does not arise?
Except that under Section 3 it should be a representative body that should make the application rather than an individual.
Yes, for the reasons I suggested.
Question put and agreed to.
SECTION 4.
Question proposed: "That Section 4 stand part of the Bill."
It seems to me that once Section 3 has been agreed to, Sections 4 and 5 must also be agreed to.
Question put and agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
The intention seems to be that the commission must publish notice of their intention to make rules. When the rules are made, they will undoubtedly communicate with the trade but is there any provision for publishing them otherwise? I do not think there is in the Bill. Is there a possibility that anybody may come along and say that the commission is entitled only to give these rules to the trade and that they are not entitled to give them to the public? I think the Minister will agree that not merelymust they be known in the trade but they must be known as widely as possible.
I agree. I shall look into that point.
It might be advisable to have attention drawn to the fact that rules had been made.
We might leave that to the discretion of the commission itself.
From the drafting I am not sure whether the commission take power to publish the rules after they are made.
I shall consider that.
Would the Minister also consider whether it might not be desirable to have some method of communication with the Oireachtas?
What is contemplated is that there will be a voluntary approach to the commission and there will be notice given that the commission are working on such an application. The fair trading rules are prepared and are communicated to the organisation concerned and the commission then has the responsibility of seeing that these rules are observed by the traders concerned. If they find that they are not being observed, then they report to the Minister and the Minister can take appropriate action.
Have they a statutory obligation under Section 6 to ensure that rules prepared by them under Section 3 are observed?
Under Section 5 they have an obligation to see that these rules are observed and, if they are not being observed, to report to the Minister, who can then proceed under Section 8.
Does that report to the Minister by-pass an inquiry under Section 6?
If some body voluntarily submits to the procedure and then fails to comply with the rules, action can be taken.
Would the Minister mind communicating to us the results of his consideration in regard to the publicity point so that if the Minister does not intend to put down an amendment we can do so?
Yes.
Question put and agreed to.
SECTION 6.
I move amendment No. 6:—
In sub-section (1), lines 34 and 35, to delete "(by one or more of their members delegated by them for the purpose)".
This commission is to consist of not less than two and not more than four members with a chairman. I think that any inquiry held should be conducted at least by a certain minimum number of members. As the section stands, the commission may delegate power to a member or members to hold an inquiry. The Prices Advisory Body, when they saw their programme was a heavy one, had, I think, to appoint two committees and to appoint a vice-chairman as well, but I think it would be undesirable that an inquiry of this nature should be conducted by one member. It would be better to have two members and the chairman. If the section is left as it is the commission can delegate the duty of holding an inquiry to an individual member.
I suppose at this stage it is not possible to speculate as to what particular type of representation will be on this commission but on the assumption that the chairman will be an independent person and that the other members will, on one side, represent business or commercial interests and on the other side, the consumers or the public, I think it would be desirable if an inquiry has to be held, that it should be conducted by a certain minimum number of members rather than allow the commission to delegate the holding of an inquiry to a particular individual.
The reason for that provision was to provide for the possibility of disposing of matters more expeditiously.If the whole commission had to sit on every inquiry it would unnecessarily delay matters. It seems advisable to have an arrangement of this kind open to the commission if they choose to exercise it so that two or more inquiries could be held simultaneously, it being understood that the whole commission must sit in on the preparation of the report which has to be submitted to the Minister under the section. May I say that I was not contemplating a commission under which all the members would be appointed in a representative capacity as such? If that were the case I agree that there would be objection to this system but assuming that the members of this body will be chosen more from the point of view of their suitability for the post than from any other consideration, it seems reasonable to allow the commission to conduct two or more inquiries simultaneously with one or more members sitting on that inquiry. This is an empowering section and is not mandatory.
I agree that it is only right that the commission should not be a representative commission in the sense that the Prices Advisory Body is, but on the other hand the ramifications of this inquiry will be very considerable. I think the Minister should consider at any rate having it held by not less than two members although the commission must itself take the decision after the inquiry is held. If the facts are presented after one individual inquiries into it it is reasonable to suppose that the commission will act on the particular slant or view which that member expressed in his report to the commission. While I appreciate that there may be in the beginning a number of inquiries proceeding simultaneously, I think there is a good deal to be said for having not less than two members.
I was thinking of a total membership of three rather than a large body. As the Deputy knows, the Industrial Development Authority proceeded in that way by delegating particular spheres of inquiries to particular members even though the wholebody has to come into the ultimate result.
If there is going to be an inquiry under sub-section (3) there can be, in circumstances, a public inquiry. If there is to be a public inquiry, then it would be undesirable that it would be held by one member.
The importance of the matter has to be taken into account.
If it is important enough to be a public inquiry it should be held by more than two. On the other hand, if the inquiry, as can be the case in the sub-section, is equivalent to a file investigation, then I can quite see the Minister's point.
As the Bill stands, it is contemplated that every inquiry will be a public inquiry unless there is good reason for having it otherwise. Deputy Dockrell wants to turn that round. On the assumption that that will be the position, we will have to contemplate that members of the commission will always act in public.
Quite. The public part of the inquiry would be the equivalent of a court decision. I think the Minister will, on consideration, agree that it would be undesirable for one member of a committee to hold that. Suppose the Minister appoints three people on the committee and one is ill, I can see that the Minister does not want the entire business of the committee to be held up. If the Minister will consider making it either two or more members in sub-section (1) or provide in sub-section (3) that an inquiry shall be held by two or more, I will be happy.
I will consider it.
I will not push the Minister beyond the consideration stage now.
It may be possible to make some arrangement.
There are undoubtedly those two aspects. First, the aspect of the file investigation, thefigure investigation which can be done easily enough by one person, but where it is a question of considering oral points that are put, then it is a different case.
I see the Deputy's view point, certainly, in that regard.
Amendment No. 6, by leave, withdrawn.
Amendment No. 7 ruled out of order.
I move amendment No. 8:—
Before sub-section (2) to insert a new sub-section as follows:—
(2) The commission may, in the course of an inquiry in relation to the supply or distribution of any kind of goods, inquire into the conditions which obtain in regard to the rendering, in the course of carrying on any trade or business, of any services affecting such supply or distribution.
This amendment goes some way to meet the idea that Deputy Cosgrave had in the amendment that was ruled out of order. The object of the amendment is to enable the commission to consider the possibility of reporting upon restrictive practices in relation to services affecting the distribution of any kind of goods which is under examination by them. I think it goes as far as it is desirable in this Bill to bring in services. It covers every case in respect of which a complaint has been made to the Department regarding the operation of restrictive practices in services as distinct from the distribution of goods.
It covers the case mentioned by the Minister last night in regard to the motor traders, where part of such trade is goods and part services applicable to such goods.
I was rather thinking of another type of complaint. Hirepurchase facilities are only allowed to certain traders and not to others. That type of service would come into an inquiry of this kind.
The service of not merely selling petrol but also filling the petrol?
I think it is desirable to have this scope available.
That is what Deputy Cosgrave was trying to get in in amendment No. 7.
Amendment agreed to.
I move amendment No. 9:—
Before sub-section (2) to insert a new sub-section as follows:—
(2) Where the commission receive a request from any person or organisation for the holding of an inquiry into the conditions which obtain in regard to the supply and distribution of any kind of goods they shall consider the grounds on which such request is based, and in the event of a decision being made not to hold an inquiry the commission shall inform the person or organisation making such request of the reasons for such refusal to hold an inquiry.
This amendment, I think, explains itself. If there are any grounds why the Minister should refuse to accept a reasonable amendment of this kind, I would like to hear them.
It seems obvious that the amendment would create considerable practical difficulties for the commission. It is almost certain that during the early period of its existence it will receive very numerous requests for the holding of inquiries into the distribution of a very wide range of products. I presume that at all times the commission will aim at giving priority to the more important complaints affecting trades where it is alleged that restrictive practices are most widespread and particularly harmful. In practice, that will mean that the commission will not be able for some time to deal with many of the applications which they may have for the holding of inquiries in a particular trade. If they are requested, as is suggested in the amendment, that they shall reply to every application, etc., then obviously they must have some formal consideration of the application. That would, it seems to me, completelyclog up the work of the commission at an early stage.
In practice, they will put it on the long finger or will not reply at all. They will have to space their work over a period of time but it would not necessarily mean that a decision not to proceed with an inquiry at this stage would involve never proceeding with it. It is better to leave the matter as it is rather than put this obligation on the commission. It would mean that they would spend most of their time not on the important allegations but considering every single approach made to them in order to give a reason why they are not proceeding with it.
I must thank the Minister for his frankness on the matter in so far as he considers what is likely to happen when the commission commences to function. I assume there will be a long finger period between the date of the coming into operation of this Act and the date when the members of the commission will commence to operate. Awkward questions can always be dodged by putting them on the long finger. As a result, we see in the House from time to time that, after the patience of members has been exhausted, questions are put down asking the Minister why such and such a thing has not been done. With very few exceptions, these questions are put down by reasonably-minded Deputies only after sufficient and ample time has been given to civil servants to deal with the matters and to the Minister to make a decision on the reports of the civil servants.
I assume that, between the time of the coming into operation of the Act and the date of the commencement of the functioning of the commission, the members will have plenty of time to prepare a priority list. I would be the last in the House to make an objection to the preparation of a priority list— a list that will be prepared on the basis of the urgency and importance of the matters that may be referred by individuals or organisations to the commission for inquiry. Is it not reasonable to assume that the priority list will beprepared before the first sitting of the members of the commission and is it not reasonable to expect that, within a reasonable period of time from the date of the first sitting, that priority list will be reviewed, say, at the end of three months or six months or whatever period the Minister would consider suitable or which the members of the commission might allocate to themselves? The preparation of the priority list does not prevent the members from reviewing that list after they receive further applications. All the applications will not come in on the same date or before a certain date.
I think that this amendment is reasonable. Apart from the question of individual applicants, I think that an organisation which, after consideration, makes an application for an inquiry does not do so on any flimsy grounds. It does so after a considerable number of people have considered the matter. The application is not made just for amusement or for the purpose of advertising the existence of their organisation. It is made for some good and valid reason.
Certainly.
Does the Minister agree that the first priority list made out on or before the date of the first sitting should be reviewed within a reasonable period of time?
I do not think the Deputy understood my point. The commission is set up. There are, say, 100 proposals for inquiries into the circumstances prevailing in particular trades. The commission says: "O.K., we will pick five or six of these proposals as being the most important and most urgent and proceed to deal with them." The amendment suggests that in every case they must consider the grounds for the request and communicate to the applicants on the basis of the consideration of the grounds for the request and why they are not taking it immediately. In my view, that would clutter up the work of the commission and embarrass its operation. I think it would be far better to deal with the most urgent cases first. If somebody asks why his particularapplication is not being taken, the answer will be that it is because the commission have more urgent and important applications to deal with first. We do not want to have statutory obligation to consider the grounds for a request.
This amendment would put upon the commission a statutory obligation which, if they attempted to discharge it, would impede and hold up the work for a long time.
I admit that queer applications can be sent in by individuals under cover of this amendment. Does the Minister agree that any organisation——
Representative organisation.
—— worthy of its name is entitled to have some reply within a reasonable time?
Certainly.
Will the Minister give an undertaking to consider this amendment on that basis before the next stage?
Provided that the reply can be, say, that other cases have priority and that the application in question is, say, tenth on the list—a reply which does not in any way involve the commission in going into the merits of the application in any detailed way. While that might be possible later on in the life of the commission I do not think it would be possible in the initial period.
Many organisations have been established in the country for the purpose of protecting the community in regard to matters of this kind. These organisations represent a substantial number of people and I submit that they are worthy of being accorded a reply within a reasonable time to a request of this kind. I would not apply that argument to individuals because I realise that individuals can become a nuisance in matters such as this and that they can make a claim——
I assume that that would be done as a matter of ordinary courtesy. I assume that a reply would be sent. I see what the Deputy is getting at. His point is that if a responsible organisation makes a request for an inquiry which the commission, after full consideration, decide not to take, it should be informed to that effect so that the matter of having the case examined can be taken up here or somewhere else.
Will the Minister look into the matter before the next stage?
It may be possible to devise some statutory provision in that regard, though in my view it is hardly necessary.
Amendment, by leave, withdrawn.
I move amendment No. 10, which stands in the names of Deputy J. A. Costello, Deputy Cosgrave and in my own name:—
To delete sub-section (2).
There are various arguments against sub-section (2) of Section 6. I think the chief argument is that it seems to put the commission very much under the direction of the Minister. Perhaps we could hear the Minister's views?
I think myself that the objection to this sub-section is due in a large measure to misunderstanding. It was not my idea that the commission should be subject to supervision by the Minister in regard to the manner in which it carried out its inquiries. All I had in mind was that the commission should be given rather clear terms of reference so that if the Minister wanted to inquire, say, into the circumstances of the motor trade he could say: "It is the motor trade which I want you to inquire into and not motor tyres or things of that kind." It seems to me, on reconsideration of the section, that it is clear enough in sub-section (1) and not necessary in sub-section (2). Therefore, I am prepared to accept the amendment.
It would look as if they were completely under the thumb of the Minister.
Amendment No. 10 agreed to.
The next three amendments are the same.
They are all together. I move amendment No. 11:—
In sub-section (3), line 1, to delete "public" and substitute "private."
The idea is to hold the inquiries in private save where the commission themselves want them to be held in public. I urge on the Minister the importance of amendments Nos. 11, 12 and 13. There is an idea—which I think is completely erroneous—that this Bill should be a big stick to beat the business community. I do not believe that the business community generally are at all as culpable as certain people seem to imagine they are. I think that the spirit in which this Bill is framed and in which it will be passed will have a very big effect on the future relations of the fair trade commission and the business community generally. If firms and associations will be continually subjected to inquiries which will be held in public —whether or not they ask for them— I think that the whole approach to the working of this Bill afterwards will be very different from what the Minister and the House would like to see. For a variety of reasons, many of which have not anything sinister in them at all, it is not always advisable to publish trade matters, and so I think that inquiries of this kind would be entered into in a much better spirit if they were only held in public when it was necessary.
The Deputy is obviously trying to turn the section around completely. What the Bill provides at the moment is that the inquiry must be in public unless the commission think that it would be unfair to trade interests to do so when they may hold a private session. I think it is far preferable to have it that way than as the Deputy suggests. His suggestion is that it would always be held in private unless there were good reasons for holding it in public.
The Labour Party amendment goes even further in the direction of public inquiries than I would think desirable because they want to provide that,even when the commission decides to hold a sitting in private, all persons interested or any person who indicates an interest in the matter, would be entitled to be present at the private sitting. I recognise fully that there are dangers that, at inquiries of this character, firms may be asked to give information which, if published, might be detrimental to their trade interests in the sense that it would reveal certain information to competitors in regard, say, to processes or advantages which they were enjoying or had secured by their own ingenuity, and that that should not be done except it is relevant to the subject matter of the inquiry. It is necessary, therefore, in my view, to provide that the commission can avoid doing unnecessary injury to trade interests in an inquiry of this kind by holding private sessions where the circumstances indicate that that would be fair.
On general principles, I think that inquiries of this character which are likely to lead to the publication of reports and to legislative action, should be held in public, and that there should be no suggestion that the report was based on anything else than the evidence which had been furnished to the commission by the interests concerned, so that public opinion could begin to circulate around the matter and lend support for whatever action might be considered necessary.
I think that this is a most important matter. I want to assure Deputy Dockrell that the members of this group do not take the view that every employer and trader in the country is a dishonest individual. The Labour Party are prepared to give support to, and, in certain circumstances, to advertise the fact that a very large section of the traders, manufacturers and business people generally are decent honest-to-God citizens. We are prepared to meet these people halfway in any matter where they have grievances. But there is a community point of view, in present circumstances, which has to be satisfied regarding allegations that excessive profits are being made by certain people and that excessive pricesare being charged. There is only one way of satisfying public opinion on matters of that kind, and that is through the medium of an inquiry held in public where the employer, the manufacturer or the person against whom the allegations are made can come forward and produce evidence to refute the charges put forward by the other side.
I hold the view that, in existing circumstances and in the dangerous times in which we live, public opinion is an important matter, and that the majority of the people in this country, or in any country under a democratic system of government, generally do not do wrong, and do not come to wrong conclusions. If we want any evidence of that we can find it in the courts of the country.
This commission will be a court. I suggest to Deputy Dockrell, who stands for high principles—he is an honourable man associated with honourable people who have been in business for generations—that he and people like him and the type of manufacturers and others for whom he speaks, should have no fear of going before a public inquiry as regards doing things in the right way, and in producing evidence to this commission, or, indeed, to any court, that they had a good defence against any charges which might be made against them. I ask him to accept it from me that the members of this group do not share the view that the majority of the manufacturers or employers of this country are all bad citizens. They are not. We will give the decent employer and the decent trader every protection that lies in our power, and we are not going to be associated with any charges made before a commission in this country or anywhere else, or from platforms, or by disclosures that could not be justified.
On the question of disclosures, we have an amendment later dealing with that. I want to say, however, that if persons are admitted, in exceptional circumstances, to a court or a commission, and it can afterwards be proved that they disclosed information which a judge or a chairman of a commissionregarded as confidential, then I personally would be prepared to say that they should be made subject to severe penalties for making such disclosures.
I thank Deputy Davin for the very nice things he has said about me and for his assurance on behalf of his Party, a thing which I already knew, that they were not out for the blood of the business community. In this matter, a lot will depend on the way in which the commission approaches it and on the way in which the business community will approach it. If the commission is working along harmonious lines with the people who come before it, then I do not think it matters a whole lot whether the sittings of the commission are held in public or in private—that is, as I say, if there is goodwill on both sides. There may be some other Deputies who wish to express their views on this.
The only view I have on this is that if Deputy Dockrell's amendment were persisted in any confidence which the people of the country had in the setting up of a fair trade commission, or in the implementation of a Bill of this kind, would be lost entirely.
A big number of people have raised the question of restrictive trade practices over the last few years and if, as suggested by Deputy Dockrell, even a big proportion of these inquiries were to be held in private, the whole effect of setting up a fair trade commission and the implementation of this Bill would be lost.
As Deputy Davin said, in the case of the ordinary courts of justice and the labour court, the vast majority of the sittings are in public. Information of a confidential or a semi-confidential nature is disclosed by employers. It is to the credit of these people who attend on behalf of the workers and the trade unions that this information is not divulged to the general public or to the members of the organisation or trade union represented by these leaders.
It would be anticipating amendment No. 15 if I were to make further remarks with regard to public sittingsbut I would again emphasise that if any large proportion of these sittings are held in private the public will not have the confidence they should have in the Bill and will not believe that there is any determined effort on the part of the Minister or on the part of this House to smash trade rings or to break down restrictive trade practices.
Provided the commission is a good one, going about its job in the proper way, I do not think the amendment matters, because, whether the section is left as it is——
The commission can do it one way or the other.
——the commission can do it one way or the other. It is just a lead to the commission. If the commission is a good commission, doing its job, basically, it does not really matter. I want to make this point. On a premise similar to that adopted by Deputy Corish I have come to a slightly different conclusion. It is in the interests of the good trader, using the phrase as meaning a person who keeps within the type of rules that we want, to resolve so far as he can the present public suspicion and so long as the commission do not allow inquiries before them to be utilised for the purpose of noising abroad trade secrets in the true sense of the term, it would be to the advantage of the good trader that the inquiries would be held in public because he would then obtain the confidence of the public.
All of us in this House know very well that for every ten complaints we get we find on investigation that about 50 per cent. of them are based upon misunderstanding of the facts. Therefore, as the disclosure in public does not affect trade secrets but merely has the facts properly understood and properly represented and therefore properly believed by the public, a public inquiry, instead of doing harm to the trader, will do a great deal of good in establishing public confidence.
I agree with the Minister and withDeputy Davin that there are cases where, while a general inquiry could be in public, certain information may not be disclosed. Whether you have the amendment or the section as it is, these cases will be dealt with by the commission, if it is doing its job. Although I know perfectly well that some traders do not appreciate it, in the main if there is no disclosure of trade secrets in the true sense of the term a public inquiry will very materially help the good trader, and equally will penalise the very small proportion of really bad ones that there are.
I agree with Deputy Dockrell's point of view but, like Deputy Sweetman, I do not think that it makes very much difference whether this amendment is accepted or not. The success of this Bill depends on the competence and ability of the commission. They can make the provisions of this Bill workable, effective and successful or they can bring about its failure. In this matter we have to repose a great deal of confidence in the commission.
I am inclined to resent Deputy Davin's sanctimonious and patronising attitude towards businessmen. There are some good businessmen and there are some bad businessmen, but who is to decide? Is it Deputy Davin? Is it the politicians who will separate the sheep from the lambs?
A sanctimonious old cod talking about sanctimoniousness.
I was always brought up in the belief——
That the evil you do lives after you.
——that the judge of good and evil is the Supreme Being, not Deputy Davin. It is a pity that when Deputy Davin did try to be reasonable he allowed to creep into his address and revealed to this House his attitude of mind in regard to the community generally. I suppose, like Hitler and Mr. Stalin and a number of others, he thinks that all men can be regimented and herded.
That is what Mr. Barry thinks about the farmers.
On a point of order. Was the Deputy in the House when I was speaking?
I suggest that Deputy Davin should treat the remarks with contempt.
Deputy Cogan is entitled to speak on the amendment before the House.
That is what I am doing.
He is entitled but he is not able.
He is slightly out of his depth.
I am replying to the point made by Deputy Davin that business people, farmers and other sections of the community should be herded into some sort of inquiry, treated as criminals until they succeed in proving their innocence.
What did I say to deserve this?
I appeal to the House to approach the Bill in a different spirit and to realise that there are evils which have to be eliminated and which can be eliminated if there is reason and goodwill on every side but if there is an attempt to blackmail, browbeat or misrepresent a large independent section of the community the Bill will fail.
May I inquire why Deputy Cogan has given the House a lecture on regimentation when it is perfectly obvious, this week of all weeks, that nobody has ever been so regimented as Deputy Cogan is being regimented by Fianna Fáil?
Amendment, by leave, withdrawn.
Amendments Nos. 12, 13 and 14 not moved.
I move amendment No. 15:—
Before sub-section (4) to insert a new sub-section as follows:—
(4) Where an inquiry is held as a result of a request made under sub-section(*) by any person or organisation, and it is decided in accordance with the preceding sub-section to hold private sittings such person or organisation shall be entitled to be present or be represented at such private sittings, but shall be required to treat all proceedings at such private sittings as confidential and not to be divulged to any other person or organisation.
In many respects this amendment is supplementary to amendment No. 9. Amendment No. 9 seeks to ensure that a person or organisation may ask the commission to hold an inquiry. The commission may do so if it wishes, but if it fails to do so, it shall indicate why it refused to hold an inquiry and the reasons for such refusal.
I think the Deputy is speaking to the wrong amendment.
I am referring to amendment No. 9.
I was inclined to rule that this amendment falls with amendment No. 9 but I do not think it does.
I understand the Minister has undertaken to consider amendment No. 9.
I said that while I was considering some alternative procedure I was not prepared to agree that they must examine each case to the point of giving reasons.
I think the reasons might be given to an organisation.
Except that in order to give reasons there must be an investigation. That is my main objection.
If a responsible organisation asks, it ought to be told why the commission refused. I agree that there is a risk in having to give an explanation to an ordinary person, having regard to the eccentricity of many persons, if an inquiry was not held. This amendment seeks to ensure that if the commission decides on holding the inquiry in private the person or organisation should be entitled to bepresent on the understanding that the proceedings are confidential and must not be divulged to any other person or organisation. I would be satisfied if the Minister would meet the point by permitting a responsible organisation to be represented. Unless they are present on these occasions they will not be in a position to tender the evidence which the commission thinks should be tendered, or to elicit information which may be helpful in the presentation of whatever case they desire to make.
I think it would be at the discretion of the commission as the sub-section is worded. You cannot just give a statutory right to everybody to be present who has made representations. There might even be 100 persons and there must be some process of selection in accordance with the circumstances of the individual case and the character of the people making the representations. As the sub-section stands I think the commission will have the right to say who is entitled to be present in the interest of the inquiry at a private sitting. If there is any doubt about it I will have the wording reconsidered. I do not think it is possible to do any more than leave it to their discretion, because if you give a statutory right to certain classes of persons to be present you can defeat the whole purpose of having a private session, and in many cases create real practical difficulties because of the number that might be involved.
I am satisfied if the Minister will look at the amendment from that point of view and write into the records here the view that if the organisation is a responsible organisation the normal procedure of the commission would be to permit a representative of the organisation to be present even at a private inquiry.
My opinion is that every inquiry should be public and that a private sitting should only be necessary where matters that are not completely relevant to the inquiry might come out of a character which, if published, would damage the trade interestsunfairly or unnecessarily because of the irrelevancy of the matter. If this danger arises and the commission is holding a private sitting, it must have regard to the persons entitled to hear the evidence. I think the wording of the section as it stands gives the commission the right to say: "We are going to hold a private sitting and at the private sitting So-and-so will be entitled to be present and hear what is going on." If there is any doubt about that, I will have the sub-section reconsidered.
Is it not manifest that there ought to be discretion in the commission to refuse permission for anyone to be present except the firm or body which they wish to hear, because, if you do not provide that discretion, any private firm which does not choose to disclose intimate personal details to the world at large can be hauled before the commission by a trade union and the trade union may claim the right to attend every sitting as a primarily interested party and gain access to information which the firm does not want to give to the trade union or anyone else? That applies very particularly to a private firm as opposed to a public company. I feel that that situation might arise and that it is essential that there ought to be discretion left in the commission to say: "The confidential financial information which we require to make up our minds as to the position of this firm and the reasons why it is doing what it is alleged to be doing is not for publication and we intend to treat it with the same confidence as the Revenue Commissioners."
I have had complaints that certain manufacturers have refused to supply A, B or C and gave some plausible reason. When the manufacturer was questioned as to the reason for the refusal he said: "I have got a report which indicates that the particular firm which applied for the supplies may be unable to pay or is not doing too well, but I am not going to say that that is the reason." Some such inquiry might come up and in everybody's interest it would be fair that these facts should not be revealedoutside the circle which must know them for the purpose of the inquiry. What I contemplate is that at a public inquiry certain questions may arise and it will be obvious that the replies to these questions will be damaging to somebody else's interest or credit, and that for a short while they would go into private session to ascertain what the position was. If they find it is not so they can raise the issue at the public inquiry. If it is so, they need not.
They can move into a private session?
Yes.
I am sure Deputy Dillon knows from his own business experience that confidential information has been given freely on many occasions to trade union officials to justify a refusal to do this, that or the other in certain circumstances. It is desirable in some of these cases that such information should be given. I venture to suggest, and I think the Minister knows more about this than anybody else, that information has been given to trade union officials and they have gone back to the people responsible for asking them to make a certain representation and given that information as a justification for not proceeding any further with the claim. I think that is desirable.
Therefore, there is some precedent for this. An organisation which makes an application is entitled to have representation. If, for instance—I am not sure whether this is correct—such an able advocate or representative of the milk producers as Deputy Cogan was associated with an application I am sure, if he was the advocate on behalf of the producers—I am only saying this for the sake of argument—he would be entitled to resent being refused a hearing before a competent court set up by this House. I would sympathise with him in particular if he was refused admission. I have a certain amount of confidence in him—it is a limited amount of confidence—in that if he got information as an advocate representing an organisation before a commissionor court of this kind he would treat it as confidential.
You mean he would not tell it to the cows.
I would go so far in protecting those who are entitled to protection in a court or commission of this kind as to say that if anybody was admitted on behalf of an organisation and information of a confidential nature had to be disclosed in defence of the parties concerned I would be prepared to say that the court should have power to impose a penalty upon any person who would break that confidence in a serious matter of that kind.
Would Deputy Norton not leave this to the discretion of the commission?
So long as "private" does not mean a sitting composed exclusively of the members of the fair trade commission.
Exactly. The commission at a private sitting would have the right to exclude or admit those whom it considered desirable to exclude or admit.
That does not exclude the possibility of the commission saying: "At this stage we propose to hear the story alone."
Exactly. One cannot exclude that possibility.
I am more concerned with the organisation rather than with the individual. An organisation which wants to give evidence to the commission, even if the session is a private session, should never be excluded except for very grave reasons and only when the commission feels, balancing everything up, that it is desirable to hold the inquiry in circumstances which permit the members of the commission themselves to be in private.
I am strongly of the view that these inquiries should be in public except where very grave reasons exist.
I am prepared to allow the matter to stand over.
I will look into it. The wording of the section may, in fact, give the commission that discretion. If not, we will provide a discretion.
Amendment, by leave, withdrawn.
I move amendment No. 16:—
In sub-section (4), line 7, after "inquiry" to add "and at the same time to the association of traders or associations of traders if any in the trade concerned."
I think this amendment is self-explanatory. It is to ensure that the association of traders or associations of traders concerned will receive the report.
I could not agree to this amendment at all. The Deputy is asking that a report from this commission, which must ultimately come before Dáil Éireann, should reach trade associations before it reaches Dáil Éireann. I think that would be very objectionable. Secondly, these reports may contain confidential information, information which even Dáil Éireann should not get because of the effect it might have upon private trading interests. The amendment asks that such information should be published to the trade associations. Every report will, of course, be published and available after it has been presented to the Dáil.
That is what I am really aiming at. I am not asking for the confidential report the Minister will get.
In fact, the report which is published to the Dáil will be available both to trading associations and for public purchase outside.
Will it not be available in the Stationery Office after publication?
It will. I think that is as much as any trade association could reasonably expect.
It frequently happens that papers laid on the Table of the House are not available for monthsafter that. Perhaps with the gradual recession of the emergency further into the background such delays will not occur in future.
I do not think the delays are as frequent as they used to be.
It would be very awkward if a report was laid on the Table of the House and was published in the Press but interested parties could not get a copy.
There is no danger of a dummy presentation such as that which occurred in an argument I had with the Minister for Finance?
If there is an assurance that proper notice will be given, that will meet the case.
Both the trade association and the Dáil must have the report before any question of action by the Minister under Section 8 arises.
When the report is printed for the Dáil will there not be certainly enough copies available then for all interested parties? The Minister could, if necessary, ensure that extra copies would be printed.
That is so.
Amendment, by leave, withdrawn.
Question—"That the section, as amended, stand part of the Bill "—put and agreed to.
SECTION 7.
Amendment No. 17 not moved.
I move amendment No. 18:—
In sub-section (3) to delete paragraphs (b) and (c), lines 24 to 33.
The purpose of this amendment is to preclude or prevent the Minister permitting publication of any information from a report which the commission may make to him on any matter which they have inquired into. I think that the commission when considering a matter of this kind must realise the necessity for exercising care in publishing any matters which might be tothe detriment of the organisation or trader concerned. Accordingly, I think that the power given to the Minister under the section to omit from a copy of a report information which, in his opinion, might injure the legitimate business interests should be given to the commission where the commission feels that a particular matter which is not relevant to a proper understanding of the report might in any way injure the business interest or the organisation concerned. We should have sufficient confidence in the commission to permit it to exercise its discretion in the matter.
I think the Deputy is suggesting something undesirable. He suggests the commission should withhold from the Minister information which might be essential for his consideration of the report.
No. The Minister has taken the wrong view. We suggest there might be information that it would be desirable for the Minister to have but undesirable to broadcast to the public. We suggest it is the commission that should decide what should be broadcast and not the Minister. If we have not made that clear in the amendment that is our fault. We want to ensure that where there is confidential information it should be the people who hear the representations as to why that information is confidential who should decide rather than the Minister who comes into the matter at a later stage. The commission's report will be sent to the Minister but there might in addition to that——
A supplementary report.
——be observations on the report submitted by the commission to the Minister. That would be permissible. In other words, it would be the persons who had themselves made the investigation and were fully aware of the internal circumstances who would decide whether publication should be prohibited, rather than the Department official coming in on the examination of the report afresh and anew.
Let us look at it from the point of view of the Dáil. What I am providing is that the commission will give its full report which may include statements of the actual profits made by individual firms over a period of time. If the Minister deletes anything from it he must give a statement to the Dáil indicating the character of the material that he has deleted and, as I say, the report would indicate: "the firms engaged in this business made excessive profit——" or something of that kind, and at this point we delete the actual figures for individual firms. But if the commission gives two reports, one report for publication and the other report not for publication, the Dáil would not have the same information as to the deletions which had appeared in the first report.
Would the Minister concede this much? Any information could only be excluded which the commission, in its report, indicated as being unfit for publication. Of course, we all know these things are not dealt with by the Minister personally although he takes responsibility. I visualise the officials of the Department taking the report and not being able to assess what is really confidential to the trade in the report and what is not. I think the people who have actually been on the preparation of the report are the people who would be able properly to make that assessment. Therefore, what I think Deputy Cosgrave wished to indicate was that it would be the commission that would decide, and if the commission indicated in their report something to the effect that: "having regard to our investigations we are aware that the following would be in the nature of true trade secrets and, therefore, the Minister should submit a summary of..." and so forth.
On the whole I think it is better to do it this way. I want the commission to work out a report without any omissions at all, giving a fair picture of the circumstances of the trade as they found it and basing their recommendations as to the action tobe taken upon that picture. What is suggested is that the report is drafted and at that stage the examination of it is undertaken again with a view to ascertaining whether its publication unabridged would be unfair to any trade interest. I think it is better that it should not be done by the people who actually made the report and that it should be done by somebody coming fresh to it provided that person indicates later the nature of the material being deleted.
Would the Minister not think it would be a good idea to go this far: that when the commission send this report they should send in either recommendations or suggestions as to what material they feel should not be for publication?
In practice I am almost certain that will be done but we cannot put that in the Statute.
I can see the force behind the arguments made by Deputy Sweetman and Deputy Cosgrave. They feel it would be of assistance to the Minister if the people who actually did the inquiry themselves were more or less the people who would suggest what is the nature of the material that should not be published. I find myself in this difficulty, that I do not want to deny to the Minister what I feel is his inescapable duty, that is, the decision as to what will ultimately be published and what will not be published. I know it will be his responsibility to discuss in the Dáil issues germane to the report that he was not able to publish. I feel there should be some compromise found whether it is to be found by way of the design of the previous report or by actually amending it. If the report received from the commission was so designed that it would give its observations or suggestions as to what would not be, in the interest of the trade, for publication in the Dáil, it would probably get over the difficulty. I am trying to find a compromise. I do not think you can find it in amending the report.
That would be making the commission do two jobs. Normallythe commission would prepare their report solely with the aim of giving an accurate picture of the trade they are investigating. Having done all that it is suggested they should go over the report with a view to seeing what parts of it should not be published in fairness to the trade concerned. I think that is a separate job and that it would be better done by somebody coming fresh to it. I do not see any objection to giving the commission the right to make suggestions in that regard, to providing for consultation with the commission before deleting any portion of the report.
I think the commission should at least know beforehand what parts the Minister proposes to delete.
I will consider whether there is any objection to such a phrase as "that the Minister after consultation with the commission" being inserted.
Amendment, by leave, withdrawn.
I move amendment No. 19:—
In sub-section (3), paragraph (b), line 24, to delete "It shall be lawful for the Minister to" and substitute "The Minister shall."
That is making the Minister legally liable for any damage he may do. I do not think we could have it. The Minister must be entitled to exercise his opinion but he cannot be made liable for the damage if he publishes too much.
I do not think there is a tremendous amount in this matter.
I cannot agree to this at all. As it stands, I have the right to publish information at my discretion, but to say I must do it raises immediately the whole question of what the consequences will be.
I do not think you could do that.
It is forcing him to omit, but I think the Minister must be left with discretion.
I think it must be at his discretion. The same applies to the next amendment.
Yes, I think it falls, too.
Amendment, by leave, withdrawn.
Amendment No. 20 not moved.
I move amendment No. 21:—
In sub-section (3), paragraph (b), to delete all words after "person" in line 27, down to the end of the sub-section.
As that sub-section stands, the two parts are really contradictory because the Minister, first of all, says he will not publish any information which would conflict with or injure legitimate business interests. He then says: "I will do it only if it is essential."
Obviously you cannot withhold from the Oireachtas information which is essential to the understanding of the report. In this case you have to balance the damage you may do to the trading interest with the damage which is, in fact, being done to the public interest. We can only justify the withholding of information which might damage a trading interest if its publication is not essential to the understanding of the position and the reason for action. If publication is essential to enable the Dáil to understand the circumstances that have arisen and why action is required, it must be published, even if it has the effect of doing that damage.
The damaging information may, as the section stands, be published even though no action is required.
That is true but the Minister——
I can see the Minister's case that if action is required the information must be published if it is necessary in order to take the action. That is done on the basis that the public good overrides the private good. But where no action is required I cannot see any justification at all.
The Deputy is mixing the Minister with the Oireachtas. Ultimately—in theory at any rate— the decision regarding action is a decision of the Dáil. The Minister may refuse to initiate a Bill, under the next section, but the Dáil would certainly be entitled to have the information which would enable it to decide whether action was necessary and so raise it independently of the Minister.
Is not that slightly naive? Where the Minister takes a course in which he will not initiate discussion and will not take action, surely he does not think some Deputy is going to take action in the teeth of that?
That he should doctor the report so that no one is going to press him?
No, no. Where no action is necessary there should be no necessity to publish information that might have a wrong effect.
Remember that this says "information which is essential to the understanding of the report".
How can you equate private good against public interest when there is no action going to be taken on the particular matter?
Look at the temptation you are giving the Minister. If he is not going to do anything about it, he withholds the essential information.
I see the Minister's point that technically a private Deputy could also bring in proposals for legislation based on the report. I had not spotted that, but I am not happy about it. We will have that on another day. I move to report progress.
Progress reported; Committee to sit again.