We have already discussed this amendment at considerable length and I have put my view that the three members of the commission should be concerned only with the consumer's interest, which is the public interest, and that a special provision of this kind is not necessary.
Restrictive Trade Practices Bill, 1952 —Committee Stage (Resumed).
Debate resumed on amendment No. 47.
I do not want to reopen the discussion but may we take it that the Minister has in mind the same outlook as prompted the submission of the amendment?
I expressed that view definitely, so definitely that I was challenged with being too partial. I want the commission to approach these questions prejudiced against restrictive practices.
So long as the Minister undertakes to implement the idea behind the amendment, we are quite satisfied.
Amendment, by leave, withdrawn.
I move amendment No. 48:—
In paragraph 1 to delete sub-paragraph (3), lines 10 and 11.—John A. Costello, Liam Cosgrave.
The sub-section, as drafted, is to enable the Minister to appoint temporary members. I think it is undesirable that there should be temporary members of this commission. I think that temporary members for a particular purpose do away automatically with continuity in relation to the administration of the Bill. Secondly, the appointment of temporary members leaves itself open to the most grave abuses. What the Minister has in mind is that a certain type of person might be required for a certain type of inquiry. I think it would be very wrong that this type of person should be a member of the commission. I think the Minister can get what he wants equally well by their being given an assignment as an officer of the commission.
Suppose, for example, that the Minister considered it necessary to get a chartered accountant with a particular type of experience to deal with a particular type of practice coming before the commission, it would be highly undesirable that the Minister should temporarily appoint some such accountant to be a member of the commission for the purpose. The commission should have power to retain such a person to make an investigation on their behalf and the commission should judge following an examination of the matter.
I do not agree. It happens that in quite a number of these Bills this provision appears because the possibility was always envisaged of the need for getting specialised knowledge on the investigating body. It is not merely enough that the commission should have available to it special advice but the public should have confidence in the capacity of the commission to judge fairly the matters that will come before it.
I was not thinking so much of chartered accountants or people with any general qualifications. I was thinking of cases where the commission would be dealing with practices relating to shipping, insurance or some specialised business of that kind, where a deep knowledge of the conditions in a certain trade would be essential for the understanding of the questions that the commission was investigating.
I think that, where a specialised type of investigation is being undertaken, it would be desirable to have power to put on the commission people whose competence in that particular field would be recognised by the people who appear before the commission by asking the commission to appoint assessors for a particular purpose, just as the admiralty judge does in certain cases.
Is it not the same thing?
It is not quite the same thing because one course preserves the continuity of the commission. We assume the commission has securedthe confidence of the public generally. If they are sustained in peculiar technical problems by competent assessors to advise them they have all the advantages while the public have the reassurance that the commission is a continuing body which does not fluctuate and into whose membership no person can be arbitrarily injected. It would not be a good thing that the Minister could inject one or two additional persons. When President Roosevelt tried to do that he upset the apple-cart. People would begin to wonder if by putting extra special members on the commission, you might sway the verdict. If the Minister put in assessors to assist the commission the integrity of the commission would remain.
There is an even worse aspect of the matter than that to which Deputy Dillon adverted. Under Section 6, the position is such that one member of the commission can make the inquiry and that one member might be the temporary member. In regard to any particular specialised branch of industry, we are a small country, and it is practically impossible to get anybody in one of these specialised branches, if that is what the Minister has in mind, who has not got an axe to grind one way or the other.
I appreciate entirely that the ordinary members of the commission may not be acquainted with insurance procedure, practice, business methods, etc., and that it might be impossible to get them to understand these things without assistance. In regard to insurance, I do not think it would be possible to find a person here who understood insurance from A to Z who had not got a vested interest of one sort or another. If you are going to take a person from within the country he probably must of necessity have a vested interest. I do not think it is right or fair to put such persons in the position of being arbitrators.
I think it is essential, where the members of the commission are not skilled in the particular and diverse practices of a particular trade, that they should have available to them thehighest technical advice. Let them afterwards assess as between the technical aspect put up by A and that put up by B. That method is the most free from vested interest control or influence. I do not think it would be right that a single person so appointed with those technical qualifications should be in the position of being able to decide in the name of the commission in respect of a particular inquiry.
That is where the kernel of the weakness lies. If the Minister appoints a highly qualified technical person to be a member of the commission for a specific purpose no matter how many of the commission may sit on the inquiry it will be the opinion of that person who is especially qualified that will carry the day.
Call him a technical assessor or anything you like.
It would be better from the point of view of the commission if a person with a particular expert knowledge were to give that in such a way as not to influence the ultimate decision of the commission. It should be left to the commission for assessment and appraisal.
The Minister would be well advised to take the view in the long run that the more stable he can make the commission and the more broad the technical assistance he would make available to it by way of assessors the better. There may even be more technical questions than shipping. There may be questions in regard to certain types of cost accountancy in regard to which you might only be able to find one person—he might not even be in this country—who would be able to make an accurate assessment. In those circumstances, it might be wiser for the Minister to take the view that people of unique technical ability would be brought on to the commission by means of nomination as a "friend" of the commission to advise as distinct from influencing the decision of the commission.
I do not care very much what name we call them—whether it be "temporary members" or "technical assessors." The problem of having only a limited circle of experts fromwhich to draw in this country would arise no matter what name we used. I would not agree at all that the commission should itself have the right to appoint extra members.
No.
The problem would arise only whenever the Minister considers that the commission is not qualified to do the job thoroughly. The commission is less likely to admit that than the Minister is to see it. In so far as the main aim is to establish and maintain public confidence in the competence of the commission to go thoroughly into the matters that are under investigation and to give a completely objective and adequate report, it is desirable that the Minister should have power to make these additions whether we call them "temporary members" or "technical assessors."
The function of the commission is to make a report to the Minister. On receipt of that report the Minister may or may not act by bringing a Bill before Dáil Éireann. Is is not clear that it is not designed that the Minister should refer to his commission of three a trade practice, that he should get a report from the commission that this practice is unobjectionable and that, three months later——
They just do not report their view upon it. They must give a report upon all the practice of the trade. The Minister would make the decision.
They submit a report.
But the report ends up by saying something to this effect: "We feel that this practice is unobjectionable and that, therefore, no Order should be made."
Exactly. Three months later a very closely analogous practice is referred to the tribunal and the contemporaneous announcement is made that, this time, the Minister has added two special members. Surely a person who is going to defend his course of conduct before that commissionwill feel that the Minister knows blooming well that in the last case he had the chairman but that the other two members went against the chairman and that the Minister is now hauling him before this commission although, in fact, he feels he should be acquitted by the previous decision. This time the Minister will take the precaution of bringing in two full members who have full voting rights with the permanent members, so that the Minister will get a report for them in the sense that the chairman of the last commission told them he wished to get but which, in fact, he did not get because the chairman was voted down. It is wholly otherwise if the commission still consists of the original three members but the Minister deliberately says: "I want to bring within their knowledge special technical information which, I think, will sway their judgment. I am going to send in assessors to advise them on the matter."
If the commission still take the view that the original decision is still the decision they would have taken after what they heard, and if the commission have the confidence of the public, I think the public will believe that whatever assessors the Minister sends in— while they will be listened to with respect—will not have the power to vote down a majority of the commission. I think it is very important, if the commission is to maintain public confidence, that the public will have the assurance that whoever the Minister sends in as special advisers will not have voting power to reverse a decision previously taken.
If the anxiety is that the Minister might use his power to, let us say, "pack" the commission then I think we could devise safeguards. I agree that there is a point there.
May I say that I think it is very desirable to get continuity? Quite apart from the abuse that could arise through ad hocappointments, you will not get continuity if you have frequentad hoctemporary appointments.
The whole commissionmust report—the permanent members also.
I appreciate that. Subject to the discussion we had on Section 6, the report of the commission will obviously be influenced by the person who makes the investigation. You will not get the continuity if the one member of the commission who makes the investigation does not apply the same type of outlook to the various procedures that come before him. If he is coming in only for a particular inquiry he has not got, shall I say, the tradition or precedent that will spring up as the commission goes on working. You will not, therefore, with a temporary member, be able to get the same continuity that you will get by utilising the permanent members or by the Minister's direction to have technical advice. If the Minister wishes to put it that way I would not object to that aspect.
I will get a form of wording which I think will meet most of it.
Amendment, by leave, withdrawn.
I move amendment No. 49:—
In paragraph 3, line 26, to delete ", unless authorised by the Minister."
This clause in the Schedule provides that a member of the commission shall not act in a particular matter if he is interested in it unless he is authorised by the Minister so to do. We take the view very strongly that if a person is interested in the matter the Minister should have no authority to authorise him to act.
What does "interested in a matter" mean?
A matter of fact.
A matter of judgment.
We are all interested, as consumers, in say, an inquiry into bakery. This is open to the very greatest objection and, I do not think that the Minister means to allowthat section to be operated in the manner in which it is open to operation at the moment. If a member of the commission is interested in or has a substantial shareholding in a business akin to or in rivalry with the type of business under investigation by the Minister it would be grossly unfair to ask him to act on the inquiry.
I agree.
But it does not do it in the right way. To be "personally interested" is not quite the same thing as to be publicly interested. We are all publicly interested in things, as consumers. "Personally interested," I think, is the same as interest in a private business capacity, if you like.
My view is that if he is interested to the extent that there is any danger of a conflict between his personal interest and his duty as a member of the commission, he should not act.
I agree.
But if he is, say, the owner of a small block of railway stock and he is called upon to deal with some substantial question of freight charges, I would not consider that that was such as to debar him from acting. I would not object to something like this: "The Minister shall not authorise a member if he believes that the member's interest is substantial," or something of that kind. What is in the section is that he will not act without reporting the fact of his interest to the Minister and getting his authority to act.
No one will know that.
That is true if his interest is a small one, but if his interest is substantial it is far more likely that people will know of it. The Minister will not authorise him to act unless he is satisfied that the amount of his interest is not such as to debar him from discharging his duties as a member of the commission.
Surely the sensible thing to do would be to apply the rule that applies in jury cases. If a man stands up in a jury box and says that he is interested in the person about to be tried he is discharged by the judge.
There are thousands of jurors but there will be only three members on this commission.
I think it would be much simpler for the Minister to say, once a man discloses the fact that he has an interest in the matter, that then he should not act.
That is precisely what is here. A member of the commission comes along and says: "I have doubts as to whether I should act," or "I have a personal interest in this." If, when he is asked what is his personal interest, he says that the commission is dealing with cigarettes and he is a smoker, that would not be a reason; but if he was a principal shareholder in a cigarette manufacturing concern it would be a different problem. What is stated here is that he reports his interest, and he must not act if it is a substantial interest.
I think that if a man came along and said that he had doubts about acting because he was a smoker himself that would be so manifestly irrational that he should not be invited to act at all. If a man is too closely connected with a business then I think he should not act.
Someone has to judge how close the connection is and how likely it is to interfere with his judgment or lead other people to think that it might interfere with his judgment.
If he thinks so himself and draws the Minister's attention to it, do you not think it will be a good thing to have a proviso to the effect: "Do not act if you feel yourself that your judgment is being swayed by some personal interest. In that case you had better not act"?
I can see the Minister's difficulty. People can havea personal interest in a question without being financially involved.
The words in this section are taken from the Order setting up a Prices Advisory Body. In that case there was far more danger of personal interest endangering a judgment of the members. I will see if I can get some form of words to meet this.
Amendment, by leave, withdrawn.
As regards amendments Nos. 50 and 51, I am prepared to accept in principle amendment No. 51 in the name of Deputy Costello. I am thinking of taking the corresponding clause in the Electricity Supply Act or the Turf Development Act which requires that a member cannot be removed except for stated reasons which are set out in these Acts, such as that a member has been unable for a long time to act as a member of the board, that he has been suffering from ill-health and for the other reasons stated. A statement of the reasons must be given to the Dáil.
Amendments Nos. 50 and 51 not moved.
I move amendment No. 52:—
In paragraph 8, to delete sub-paragraph (1) and substitute the following:—
(1) In this paragraph, "authorised officer" means a person authorised in writing by the commission for the purposes of this paragraph.
I promised on the Second Reading to introduce an amendment of this character. There are a number of amendments dealing with this point, namely, the authorisation to be given to officers of the commission to carry out investigations. I think it is adequate to provide, as I propose to provide here, that an authorised officer means a person authorised in writing by the commission. I do not think we should exclude ourselves from utilising an officer in the Garda Síochána from carrying out investigations, provided he is authorised in writing by the commission, nor would it be wise to limit ourselvesto the authorisation of officers in the Civil Service not below the rank of principal officer. In practice, any work of the commission will be done by officers in the inspectorate in the Department of Industry and Commerce. I contemplate that most of our departmental inspectors, in addition to their existing duties, may be authorised to carry out inquiries for the commission. I would not like to exclude completely the possibility of using an officer of the Garda Síochána in certain cases. The objection, I understood, was to the possibility that members of the Garda Síochána, on their own initiative and because of the wording of this paragraph, would go around carrying out inquiries on their own behalf and reporting to the commission. I agree that that prospect should be ruled out. That would be an undesirable position. I think I have succeeded in doing that by this amendment which requires an authorisation in writing by the commission.
There is still a general authorisation which I do not think is desirable.
It is a general authorisation to an individual.
I can still see the objection of this authorisation being given to the Garda Síochána.
It will be to one particular member who will be attached to the commission.
It is to one particular member for all the investigations that he might wish to make. I think that the Minister ought to limit his appointment, and that an authorised person should mean an authorised person, in writing, for a particular inquiry. The commission could very well authorise an inspector of the Department of Industry and Commerce to make all the inquiries that are necessary.
The commission will have more to do than conduct inquiries. It has the further duty of keeping under general review the operation of restrictive practices orthe adequacy of the orders made under the Bill.
Supposing the commission want to find out whether X has occurred in Ballydehob or not, and they do not want to go to the expense of sending an inspector from the Department just to make one inquiry, and they ask the local sergeant to make the inquiry for them and report back to them, if the thing is simple enough, where a person goes in and asks did you sell this or did you not, I can see possibly a case for it.
The Deputy is misunderstanding the position. In so far as there is any question of a trader or any other person having contravened an Order which has been confirmed by the Oireachtas, there is no question of having to use authorised officers. There is then an offence against the law committed, and all the machinery of law enforcement is available to check repetition of that offence or to bring offenders to the courts. We are dealing here now with the work of the commission, and only the work of the commission.
The work of the commission is to conduct specific inquiries into the sale and distribution of particular goods or else to carry out this general investigation as to how Orders made are working out; whether they require amendment in view of the effect that they have on trade or the methods that have been found to evade them. It is to carry out inquiries of that kind that the commission should have authorised officers, and I think there could be certain instances in which those authorised officers would be given by the commission a sort of general authority to go through the country and see how an Order that was made is working out; whether it is unduly restrictive on trade or means have been found to evade it; so that they can report to the Minister whether an amendment or annulment of the Order is desirable.
It would be very undesirable that that type of roving investigation should be undertaken by a Guard.
I think there are circumstances where it might be more desirable to have it undertaken by a uniformed Guard than by a non-uniformed inspector of the Department.
Surely all experience teaches us that in matters of that kind you want a person of prudence and discretion. All of us have had the experience in administration that the zeal of youth brought into raw contact with the public can sometimes produce the most unexpected results, and that an experienced officer, either of the Civil Service or the Garda, can often get the same thing done without an explosion while a zealous young civil servant or a young member of the Garda could stir up a hornet's nest. It is not an easy thing, without creating a good deal of annoyance, to question people about their personal affairs. I think the outstanding example is that if the Post Office are trying to put a pole on your premises they always have senior responsible officials who can come in and put the come-hither on you, whereas a young fellow, such as some of the E.S.B. officials, announce that they are going to put up a pole and the matter will go to the Supreme Court.
I never heard the Post Office being refused leave to put down the most preposterous poles, because they have senior men and take the trouble to send senior men to put the come-hither on somebody that they want to get around. Speaking as a shopkeeper, I do assure the Minister, from considerable experience, that it makes all the difference in the world if a responsible and experienced officer of the Department or the Garda comes in, makes his inquiry as a rational man, without putting the pistol to your head, rather than the young fellow who comes in and claps down a form and says: "Answer these questions and sign the paper."
That is precisely the point I am trying to meet with this amendment. It will not be any Guard or any civil servant. He must be selected, personally authorised.
I think the Minister has come a long way to meet it. All I amsuggesting is, is it desirable to go a step further and say that persons so authorised—as Deputy Sweetman says —who will have a general authorisation, should have a certain rank in the service from which they are drawn to qualify, certainly, for general authorisation, as distinguished from ad hocauthorisation for one particular inquiry? Here, again, it is a matter the Minister might turn over in his mind.
If the Deputy would agree with this, we could provide that the authorisation in writing shall specify the purpose for which the officer is authorised.
Yes. I think that goes the way I want it.
But I understand it is quite possible that they will have one officer, or more, who would be given a general sort of authorisation.
Quite. And there are officers to whom it would be desirable to give a general authorisation. There are other officers in whose case it would not be desirable. I want to ensure that the officers to whom you would not give general authorisation are not, in fact, empowered, under the authorisation they have, to make general inquiries.
Very well.
And that those who get general authorisation will be fairly senior men who would have discretion.
Certainly.
As an aside, I cannot let Deputy Dillon's statement go without this comment. He has been luckier with regard to the Post Office than I was. I arrived home to find them cutting my trees without a "by your leave".
It is not usual.
Amendment put and agreed to.
Amendments Nos. 53 to 58, inclusive, not moved.
I move amendment No. 59 :—
In sub-paragraph (1) of paragraph 9, page 8, line 16, to delete "confidential".
There is no need to limit the restriction on the disclosure to confidential information. It should apply to all information. That is the same point that Deputy Dockrell was trying to meet in his amendment.
Amendment agreed to.
Amendment No. 60 not moved.
In regard to amendment No. 61, that is a rather drastic provision that Deputy Dockrell wants to put in here. I think it is too drastic. It is to provide that the penalties for disclosing information should be the same as those for breaking any one of the Orders confirmed by law. I think it is very drastic.
Amendment No. 61 not moved.
I move amendment No. 62, in the name of Deputy M.E. Dockrell:
(4) If any person discloses any information such person shall be liable for damages for any financial loss suffered by any person, firm or company as a result of such disclosure.
I think there is a case to be made for the amendment.
Except that it is not necessary. I am informed that that is the law, that if a person is damaged by the unauthorised disclosure of information by a member of the commission or somebody who came into possession of information through his official duties, he is entitled to proceed in the courts for damages.
Hardly, I think, for financial loss.
Damages for financial loss, yes.
I would have thought that, in regard to a statutory body, you would have to show malice.
All kinds of rules come into play to protect the authority of the State.
My information is that a person who has a duty not to disclose information and who fails in that duty renders himself liable under the law for any financial loss thereby suffered.
The difficulty is that we still operate under the old maxim that the King can do no wrong, which covers all State employees, except where that protection has been removed by statute, such as, for instance, in the case of road accidents and so on; you still have to get in most of these cases leave from the Attorney-General to proceed. I think there would be value in having the amendment in.
I do not disagree at all. I agree that it is a useful provision that if a person who should not disclose information does disclose it and if somebody suffers financial loss thereby that the loser should be entitled to recover damages in the courts. I would agree with that. That is the law. If there is any doubt about that I will check on it.
Fair enough.
Amendment, by leave, withdrawn.
Amendment No. 63 not moved.
Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
When will the next stage be taken?
Next Wednesday week.
When will the Minister be able to circulate the amendments which he proposes to bring in?
I hope by the end of next week.
He will appreciate that it is really necessary for us to see his amendments before we can put in our amendments.
If I cannot get them out by, say, to-morrow week, we will not take the Bill in the following week.
Fair enough.
Ordered that the Report Stage be taken on Wednesday, 25th February.