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Dáil Éireann debate -
Thursday, 12 Feb 1953

Vol. 136 No. 6

Restrictive Trade Practices Bill, 1952— Committee (Resumed).

Debate resumed on amendment No. 1:—
In sub-section (3), paragraph (b), to delete all words after "person" in line 27 down to the end of the subsection.—(Deputy M. E. Dockrell.)

Is amendment No. 21 not consequential on an earlier one we discussed already?

Amendment, by leave, withdrawn.

Will that amendment be discussed on the Report Stage?

If the Deputy wishes to put the amendment in another form it can be discussed.

It is consequential I think on the other amendment which we discussed.

Amendments Nos. 18 to 22 were to be discussed together.

Amendment No. 22 not moved.
Section 7 agreed to.

I move amendment No. 23:—

In sub-section (1), line 38, after "following" to add "provided that the fair trade commission so recommended."

I am not quite clear exactly what Deputy Dockrell has in mind but for the purpose of getting the matter clarified in the House and without at this stage committing myself either way I move the amendment. I cannot understand the phrasing of the section as it is and how the Minister could make an Order if it was not recommended. Is it intended in the section, as it is framed by the Minister, that he can do something that the commission recommends that he should not do?

The commission makes a report under Sections 5 and 6 in which they set out the conditions obtaining in regard to the supply and distribution of goods and the extent to which these conditions prevent or restrict competition or involve price maintenance. They give their opinion as to whether these practices in the trade are or are not contrary to thepublic interest and the reasons for their conclusions. The Minister gets that report, considers it and decides whether, on the basis of the information, it is desirable to take further action in the form of making an Order and proposing legislation to the Dáil. Deputy Dockrell's point, as far as I understand it, is that the Minister should not be empowered to take any action unless the commission recommends that action should be taken. That would leave the position that while the Minister could refuse to act on a recommendation he could not act without a recommendation. I think that is undesirable.

The report having been received, it should be the Minister's duty to decide whether action is required or not and to justify that decision to the Dáil. It seems to me that this amendment would create a peculiar situation, that some other Deputies having got the report and having read it, could propose that action should be taken on it to restrict the practices dealt with in the report which the Minister could not. That would be a most peculiar situation.

That certainly would appear to be a peculiar situation. If the Minister looks at sub-section (2) of Section 7 which has just been discussed he will see that there is provision there that the commission must submit a draft form of order so that the position is not quite as the Minister suggests.

If they have decided that these practices should be restrained or dealt with in some way they should indicate the precise action they think is necessary in the public interest. I think it is undesirable to leave the situation one in which the Minister cannot take action on his own decision even without a recommendation from the Dáil. He would have to defend his action to the Dáil and could only succeed in doing it if he convinced the Dáil that it was desirable to take it.

I agree. Perhaps, I should explain that Deputy Dockrell is ill. If there is some point I have overlooked, perhaps, Deputy Dockrell couldbe permitted to put it down for discussion on the Report Stage.

He can move it again.

Amendment, by leave, withdrawn.

I move amendment No. 24:—

In sub-section (1) to delete paragraph (f), lines 51 and 52.

This amendment is not consequential at all as I understand it. I would like the Minister to explain what he anticipates is the type of matter that will come under clause (f). It seems to me that in dealing with the remaining five previous paragraphs he has dealt with every type of thing that is required, particularly in paragraph (e). As I understand it this Bill is to ensure the equitable treatment of all persons in regard to the supply or distribution of goods. That is the necessity, to ensure that equitable treatment is the basis of regulating the practices. I am not a bit clear as to what the Minister intends to do.

There was some difficulty in drafting this section and in expressing the various courses of action which the Minister could take to deal with restrictive trade practices which had been brought to his notice in a report from the commission. The difficulty arose out of the assumption that the investigations of the commission might reveal undesirable practices different from those which had been generally mentioned in the course of our debate. It was thought desirable that this section should be drawn up with a wider provision so that the Order could, in fact, prescribe measures for dealing with practices of, perhaps, an unusual or peculiar nature that might be revealed in the course of investigation. It was thought undesirable to restrict the section too rigidly in defining courses of action so that there would be a certain freedom of choice in the measures to be adopted.

Could the Minister give any example?

Precisely what I am trying to say is that it is the expectationthat restrictive practices of which I cannot give any example will emerge.

It is the differences between the two clauses that I fail to understand. I understood that clause (e) was the omnibus clause.

Clause (e) deals with the equitable treatment of all persons in regard to the supply or distribution of goods and the conditions under which goods may be sold generally. It would appear that clause (f) was intended to be the omnibus clause which would catch in its scope any type of practice the commission thought would be undesirable.

I thought clause (e) was put in as the omnibus clause, that it was not considered sufficiently omnibus and that clause (f) was put in without deleting clause (e).

Amendment, by leave, withdrawn.

I move amendment No. 25:—

Before sub-section (3) to insert a new sub-section as follows:—

(3) If the Minister revokes or amends any such Order he shall forthwith lay before each House of the Oireachtas a statement giving his reasons for such revocation or amendment.

This amendment is fairly obvious and the Minister will appreciate the position.

It does not seem to be necessary. When the Minister makes an Order under sub-section (1) or sub-section (2), it will not have any effect unless it is confirmed by an Act. Consequently, a revocation or amending Order would also have to come before the Oireachtas by way of a Bill.

And that is an occasion on which the Minister would explain his reasons.

The Minister cannot make a revocation Order without bringing in a Bill?

We thought it could be done by regulation.

Amendment, by leave, withdrawn.

I move amendment No. 26:—

To add to the section a new sub-section as follows:—

(5) The Minister shall comply with the provisions of the preceding sub-section within a period not exceeding three months from the date on which he received a report of the commission under Sections 5 or 6.

The amendment is quite clear.

I am not opposed to the principle of the amendment but I may see some difficulties in devising words that will give satisfactory effect. If the Deputy would leave it over until Report Stage, I will see what we can do.

Amendment, by leave, withdrawn.
Section 8 agreed to.

I think I would be opposed to amendment No. 27 in any event.

So would I. I think Deputy Dockrell somewhat misread the section.

Amendment No. 27 not moved.
Amendment No. 28 not moved.

This is the same point with regard to amendment No. 29. These Orders will not come into force unless, in fact, they are confirmed by an Order of the Oireachtas. Therefore, the amendment is not necessary.

Amendment No. 29 not moved.

I move amendment No. 30, which stands in the name of Deputy Norton and in my name:—

To add to the section a new sub-section as follows:—

(2) Where the commission receives from any person or organisationcomplaints as to restrictive practices in connection with the supply and distribution of goods and the operation of Orders under Section 8 they shall investigate such complaints, inform the complainant as to whether or not they found the complaint proven, and shall where necessary report to the Minister on this investigation and recommend what action should be taken thereon.

The point of this amendment is that, in Section 9, there is provision that the commission will keep under review the general effect, so far as the public interest is concerned, of restrictive practices and the operation of the various Orders made by the Minister. That indicates quite clearly that there is a requirement on the commission to exercise their own initiative in the matter. We feel, however, that there should be facilities to enable any member of the public to bring the attention of the commission to any particular complaint they may wish to make. More than that, we think it is necessary that the commission should be empowered not merely to receive the complaint which would automatically follow by reason of the setting up of the commission, but that they should be empowered to investigate the complaint and to inform the complainant as to whether or not there was ground for the complaint.

From our experience in regard to the Factory Acts, a trade union very often makes complaints to the Department, and these complaints are investigated by the officers, but we never find out the result of the investigation. In so far as we are concerned with protecting the public interest and individual members of the public, we feel that not merely should they have the right to submit their complaint to the commission, but that they should be informed whether the complaint has been investigated and what substance has been found in it, so that they would be in a position to decide whether or not they desire to have the matter pressed further either by raising it in this House or, if necessary, by having the matter brought directly to the attention of the Minister.

I think that this amendment is based on some misunderstanding of the form of the Bill. It is obvious that a person who desires to make a complaint about the prevalence of some restricted practice would act under Section 6. He would go to the commission or to the Minister with a proposal that the practice of which he was complaining should be investigated by the commission or perhaps, alternatively, under Section 3, with a view to having fair trade rules made. It is only following the examination of a complaint and a report by the commission that the Minister would have power to make an Order and that that Order would be confirmed by legislation. If that has been done, then a complaint that the legislation has not been observed would be a matter for the courts and not one for the commission. It would be a matter for representation to the Minister with a view to having action taken against the defaulters or action taken independently in the courts.

It seems to me that it is inappropriate that this provision should be inserted under Section 9. An individual can move under Section 3 or Section 6. Probably most approaches will be made under Section 6 with a view to inquiry. If an inquiry has been made and if, following that, an Order is made and that Order is not observed, then it is a matter for the courts and not for the commission. Therefore, it is inappropriate to provide for action by individuals under this section. Either they move under Section 6 or initiate proceedings to get action taken in the courts.

We are dealing here with the general review which the commission is required to undertake in respect of restrictive practices and the Orders signed by the Minister. Clearly, if the commission is to form an opinion that over a period a new form of restrictive practice or evasion has been established and can form that opinion not merely on the formal complaint of associations referred to in Section 3 but as a result of formal inquiry, the ordinary process of establishing that there is a situation that requires to be inquired into on their initiative must beas a result of collective information received from time to time, and so forth. As far as Section 3 is concerned, the application for the making of fair trading conditions is confined to associations.

So far as Section 6 is concerned, it might be that the commission could act on the complaint of an individual but that is a very formal approach. It requires the commission to consider the matter. It may even need the same attention of the Minister. I am concerned with the individual member of the public. The general form of trade restrictions emanates not merely from the top—by decisions from associations, and so forth: it also starts to make itself felt in regard to practices that gradually come from individual consumers. Many of them can be dealt with before they become embodied in the rules of an association. I think it would be of benefit to the commission that this approach should be possible. All that is in the amendment is that, as a matter of courtesy, after receiving a complaint, the commission would inform the complainant that it has been investigated and also what substance was in it.

I do not disagree with the Deputy's view at all, but I think this amendment relates to the wrong section of the Bill. There are two categories of restrictive practices which come for consideration in this connection—(1) those in respect of which the commission has taken no action as yet and (2) those in respect of which it has taken action. With regard to the first category, complaints that restrictive practices prevail may be made either to the commission or to the Minister and the commission, on its own initiative or by request, may proceed to investigate these practices. It is to be assumed that the great majority of complaints from individuals will relate to practices which have not been investigated and will take the form of a request that they be investigated. If that is done, a report is made and a Bill is passed. If, at that stage, there is complaint that the requirements of legislation are not being observed, that the restrictive practices against which the legislation is directed are stillprevailing, then the representations would go to the Minister with a view to taking proceedings under Section 14 in the courts. It is then a matter of law and the requirements of legislation would have to be enforced through the courts.

Would the commission be taken to receive representations?

Certainly. The Bill says the commission may act on its own initiative.

Under this Section 9 we are directing the commission to keep under general review the operation of the Orders under Section 8. If the commission are to keep obedience to these rules in operation, then it will be open to people to make representations to them that in their general review they should advert to the fact that these Orders are not being kept.

May I interrupt? It is not so much that. An Order is made and a Bill is passed prescribing certain rules for the particular trade. It is undesirable that the position should be left that these rules can never be altered even if it is proved, in experience, that, in their operation, they are detrimental to public interest. The idea of Section 9 is to ensure that the commission will always keep these operations under review—not to enforce them, but to see if the Order should be amended and recommend an amendment of it to the Minister, with a view to having amending legislation submitted to the Dáil. If there is failure to obey the law, then, of course, the Minister can be challenged here for not proceeding under Section 14.

With all respect, I think that the section is badly drafted in that case.

The Minister made the point in referring to Sections 3 and 6 that we are dealing with conditions in respect of which no legislation has yet been made. In Section 8 we are dealing with the position where Orders have been made. Our common experience, in regard to the ability to obey Orders, is that no one will know that more quickly than theconsumer who comes up against an individual person engaged in trade. I think, from that point of view, it would be well that we should have the assistance of those persons who would be in the way of getting complaints.

The point that I am stressing is that, having received complaints, there should be some obligation on the commission at least to deal with them in a courteous way by acknowledging them and investigating them, and indicating whether there was some foundation for the complaints. Our experience in regard to factory legislation has been that we find ourselves up against this same problem of evasion. We make the complaints, and it is practically impossible to find out afterwards, unless you watch the reports in the newspapers, what have been the actual results of the complaint. The result is that you get tired making complaints when you think that they are not being treated seriously. If we ask the commission to keep the operation of these Orders under review, there is no reason why we should not at the same time indicate that the evasion of Orders would be the subject of complaint to the commission and that they would be dealt with when received.

They cannot be dealt with by the commission. If some individual finds that an Order made by the Minister and confirmed by legislation is defective in the sense that objectionable practices still prevailed in the trade, then the only way in which that situation could be dealt with is by an amending Bill. That is why this section says that the commission will have the general duty of keeping the position under review and of reporting to the Minister so that amending legislation, if the Minister deems it to be desirable, can be proposed to the Dáil. I do not think it is necessary to put into the Bill a provision requiring the commission to act courteously to people who make complaints. The purpose of the section is to entitle them to receive representations to the effect that Orders made were not satisfactory and should be amended. You could hardly expect thecommission to write to a private individual and say that the Order was defective. Its responsibility will be to report to the Minister and say that the Order requires amendment.

My point is that it is very easy to "brown off" people by merely continuing to receive complaints from them. The result is that they never know what happens to them afterwards. If the commission is to keep these matters under review, how is it going to do it unless we supply it with an army of inspectors? Surely, the most effective people to assist the commission would be those referred to in the amendment.

I do not think it is necessary to put in the words in the amendment.

Perhaps it would be better to subdivide the section, one part of the commission's general duties to be in respect of pre-rule duties and the other in respect of post-rule duties.

I will have a look at that. I think it should be confined very largely to the operation of the Orders.

Amendment No. 30, by leave, withdrawn.
Section 9 agreed to.

I move amendment No. 31:—

Before Section 10 to insert a new section as follows:—

It shall be lawful for a court of competent jurisdiction to grant an injunction on the motion of the Minister or of any other person to enforce compliance with the terms of an Order under Section 8 for the time being in force notwithstanding that any other proceedings, civil or criminal, may lie for that purpose.

There was some misunderstanding, I think, shown during the debate on the Second Reading as to the effect of Section 10. I have thought it desirable to clear up that misunderstanding bythis amendment in Committee. The misunderstanding arose out of the use of the term "notwithstanding any rule of law". The meaning of that phrase simply is that, in considering an application for an injunction, the court will be aware that it is a rule of law that the court should not grant an injunction where an alternative remedy is available to the applicant. The amendment which I am proposing is really a drafting amendment. It is designed to remove any misunderstanding in regard to the use of the term "notwithstanding any rule of law", and make it clear that the court may grant an injunction either on the motion of the Minister or other person to enforce compliance with an Order made under Section 8, notwithstanding that other courses of action are open either to the Minister or to the individual concerned.

Amendments Nos. 33 and 34 may be moved against the proposed new section.

But not amendment No. 32?

Amendment No. 32 not moved.

I move amendment No. 33:—

In line 3 of proposed new section (amendment No. 31) before "to" to insert the words "appearing to the court to have an interest."

I think that the effect of the amendment is fairly clear.

This deals with a legal point and my advice is that the amendment is not necessary: that under the ordinary procedure, the court would not entertain an application for an injunction unless the applicant could show that he had an interest. It occurred to me that Deputy Costello might have some point in mind different from the one that I have mentioned and that I had better wait for his explanation with a view to meeting it if possible on the Report Stage. If, however, the sole purpose of the amendment is to ensure that the court will not consider an application for an injunction except from some person who is interested inthe matter, then I am advised the amendment is not necessary.

That would be so in the normal course, but the type of interest in this matter is not clear.

If what I have stated is the purpose of the amendment, then I am advised it is not necessary. If Deputy Costello has any other purpose in mind perhaps we had better leave it over for Report.

Amendment No. 33, by leave, withdrawn.
Amendment No. 34 not moved.

I move amendment No. 35, standing in the name of Deputy J. A. Costello:—

To add to the new section proposed in amendment No. 31 three new subsections as follows:—

(2) Any person against whom any such injunction is sought shall be at liberty notwithstanding anything in this Act contained to oppose the grant of such an injunction and no such injunction shall be granted if he establishes to the satisfaction of the court that notwithstanding any Order under Section 8 for the time being in force he has not been a party or privy to any restrictive trade practices within the scope or intendment of such Order.

(3) Pending the final determination of any such application as aforesaid the court shall have power in its discretion if satisfied that the justice of the case and the public interest requires it, to make an interlocutory injunction within the terms of such an Order pending final determination of the matter.

(4) The court shall have power in its discretion to award costs in such proceedings and in particular if satisfied that it would in the circumstances of the particular case be just so to do order that as a condition of the person against whom any such injunction is sought being at liberty to defend such application he be liable irrespective of the final result for the entire or such portion of the costs as the court shall determine.

The point of Deputy Costello's amendment is clear enough. It proposes togive to a person against whom a course of action is being proposed under Section 10 as it stands an opportunity of opposing the action if he has not been a party to or concerned in a restrictive practice within the scope of the Order. I can quite see an objection being made by the Minister at once that the effect of that will be that one small section of a particular association or interest can hold up action in respect of the entire interest. I do not think, however, that that is in any way a valid objection and I do not think that the other objection that can be made in the normal course of events, that the effect of this section would be that the big combine would have the advantage, can be made because of the power that Deputy Costello proposes to give that a court can make it incumbent on the party moving to agree to pay the costs on the other side, whether he wins or loses.

If there was not that provision of Deputy Costello's in the Bill, then I can quite see a case being made against it that it would obviously favour the big man who could afford to go on with the proceedings ad libright up to the Supreme Court as against the small man. The court is given specific power in the fourth sub-section that, irrespective of what the result will be, if the court deems it just, it can say to the interest moving the motion: “We will not allow you to stay this injunction, to stay the proceedings, for the full consideration of this, unless you undertake to pay the costs of the person opposing, irrespective of the results.”

There is also a provision included in sub-section (3) of Deputy Costello's amendment that the court will have equal power to grant an interim injunction pending the full hearing, but the effect of this will be to ensure that if, and it has been known to happen, Ministers and commissions do unjustly override the legitimate rights of the individual trader indicated, as they have already been indicated in amendment No. 1 and accepted in principle by the Minister, the court will have the power to remedy the injustice and will be entitled to look to the basis of the transaction and not merely accept whatmight perhaps be described as a political decision by a Minister without regard to the justice of the case.

As regards the first part of paragraph (2), its purpose is not very clear and, in so far as I have been able to understand it, I am advised that the paragraph is not necessary at all. Under the law as it stands, any person against whom an injunction is sought is, of course, at liberty to oppose the grant of the injunction. In so far as the concluding part of that paragraph is concerned, an injunction cannot be sought against a person who has not a specific obligation either to do or to refrain from doing a particular thing. Consequently, a person who would not be under an obligation imposed by an Act of the Oireachtas, that is, an Act confirming an Order under Section 8, could not be proceeded against for an injunction under the section at all.

As far as paragraph (2) is concerned, unless there is some point that I have not grasped intended to be met by it, it seems to me to be unnecessary. So far as the second paragraph is concerned, I am advised that that is definitely so, that it is unnecessary, that Section 28 (8) of the Supreme Court of Judicature (Ireland) Act, 1877, empowers the court to grant an interlocutory injunction and that that paragraph is not necessary.

The next paragraph, however, raises a point on which the legal advisers to the Government take a very definite view. The Act of 1877 to which I have referred gives the courts power as to the award of costs and they do not require any other powers in that matter. If the intention of paragraph (4) is, as it appears to be, to provide that the defendant in an injunction suit should be made liable for either a portion or for all of the cost as a condition of his being allowed to defend himself, that is regarded as a most unreasonable provision to make, one which would involve a denial of justice.

On the whole, as I understand it, the amendment is either unnecessary or undesirable. To summarise: inconnection with paragraph (2) a person against whom an injunction is sought is entitled to defend himself. An injunction cannot be sought against him at all unless he has in some way infringed a provision of an Act confirming an Order under Section 8. So far as the second paragraph is concerned, that power is there already and, as far as paragraph (4) is concerned, I understand the power sought there is one that is undesirable and which, if given, would be regarded as an introduction of a new and unreasonable principle in law.

I know what Deputy Costello has in his mind in regard to this amendment but, to be quite honest, I cannot see how he gets it with this form of words in amendment No. 35. I think what he has in mind is to provide that if an Order is made under Section 8 by the Minister declaring that something is a breach of one of the paragraphs set down in the amendment——

It will not be in that form. That is possibly where the misunderstanding arose.

I think it is. What he was intending to provide was that if an Order was made that X was in breach of one of these specific clauses and that in fact he was not in breach, a person would have the power to show to a court that the Order had been made in error of fact as a defence to an injunction but that that power would not be there purely for the big combine to do it, that there would be a similar power available to the smaller man by means of sub-section (4) to provide that the opposing argument could be put.

I do not think we can contemplate a situation where a court can decide whether the Oireachtas has or has not made a mistake. I think there is some misunderstanding here. An Order under Section 8 prohibits certain specific things. That Order is confirmed by law and the only question that comes before the court is whether an individual in a particular instance contravenes that law or not. If it isheld that he has and an injunction is sought, he can defend himself on the ground that he has not contravened it.

I do not think he can under the section as it stands.

The only possible interpretation is that Deputy Costello contemplates the Government going into court and saying he has contravened the law by doing something prohibited by the law and the defendant says: "I have contravened the law; I am doing something prohibited by the law, but what the law has prohibited is not a restrictive practice, and therefore I should not be expected to obey it." That seems to be the object of the amendment. On that assumption, it could not be accepted. He seeks to provide that an injunction cannot be given unless he is held to have contravened a specific provision of the law, and there is no need for the amendment at all. Paragraph (2), in any event, is unnecessary as that power is there. Paragraph (4) appears to introduce an undesirable provision, that the person against whom an injunction is sought may, as a condition of being allowed to defend himself, be required to pay a portion or all the costs.

The effect of sub-section (2) is to change a person from being in the position of defending himself to being in the position of taking the initiative. It is only because in fact a person will be taking the initiative under sub-section (2) that there will be any validity in sub-section (4).

Is it clear under the section which the Minister proposes to substitute for Section 10 that a person against whom it is sought to get an injunction is entitled to go into court and say that the Minister has made an Order under Section 8 requiring him to do something or to refrain from doing something which he alleges is unconstitutional? Let us imagine that a person has refused to comply with an Order, and the Minister seeks to compel him to obey his Order. Under the new section proposed by theMinister is it clear that that person has the right to go into court and say: "I have refused to comply with the Minister's Order, but I have good reasons for it. I will give the reasons and ask the court not to grant an injunction"? Suppose the court grants the injunction and he goes to the Supreme Court and succeeds in persuading the Supreme Court that he has a constitutional right and that the Order is invalid.

I take it these three proposals in amendment No. 35 are designed to ensure that such a person, should he succeed in his contention and defeat the Minister's motion to get an injunction against him, would be entitled to recover costs against the Minister for the proceedings in the High Court and in the Supreme Court? Without these proposals, has he that right?

I presume he has that right under every law. It is always open to a citizen to contend in the courts that some Act contravenes the Constitution and is invalid and whatever rights he has in the matter of costs in respect of any Act of the Oireachtas he has here, so that it will be unnecessary to make any special provision to deal with that situation. I am certain in my view that it is always open to a citizen to challenge the constitutionality of an Act of the Oireachtas.

Is it clear that he has the right to go to court and contest the Minister's claim?

He is certainly entitled to do that.

Suppose it is argued that the Minister made some fundamental error in issuing his Order. Suppose the Order is quite ultra viresand the man in court says: “The Minister believes himself to be issuing an Order against me under Section 8 which I say is quiteultra viresto Section 8 and I have accordingly ignored it and the Minister seeks to injunction me.”

The Minister's Order has no validity at all until it is confirmed by an Act of the Oireachtas which then becomes law. If there isanything done under the Order which is undesirable the Oireachtas must take the responsibility. Therefore it is not the question of contravening a ministerial Order that will arise, but the question of contravening an Act of the Oireachtas.

I see the Minister's point. Suppose the Minister makes his Order and gets it enacted by Oireachtas Éireann, his next step is to apply it. He proceeds to apply it to me individually and I ignore his direction to carry out the terms of the Order as enacted by the Oireachtas and he goes to the court to get an injunction. Am I free to appear in court and say: "I acknowledge the existence of the Order; I do not challenge its validity, but I say that what the Minister requires me to do or is asking me to do does not come within the terms of the Order"?

That is a question of fact.

If I go into court to challenge the Minister's claim for an injunction on the grounds that he is asking me to do something that the Order does not require me to do, can I recover costs against him if the court should hold that I am right and he is wrong?

I think so. As I understand, what Deputy Costello wants is that the person against whom an injunction is sought may have the prosecution's costs given against him.

Perhaps Deputy Sweetman might read it and the rest of us may be able to see what it means. The Minister has the advantage of having legal advisers and this has been drafted by a member of the legal profession. A lot of us find it impossible even to read it grammatically.

We will leave it to Deputy Costello to argue on the Report Stage. As I understand it, the Minister's argument is that it is not, in fact, an Order—that calling it anOrder is a misnomer, that in fact it is an Act of the Oireachtas and that the confusion arises because of the terminology of it.

Amendment No. 35, by leave, withdrawn.
Amendment No. 31 agreed.
New section inserted.
Section 10 deleted.

Amendment No. 36 may only be moved with the words "or a service" in sub-section (1) and sub-section (2) deleted.

I agree to delete the words "or a service" and I move amendment No. 36 as follows:—

Before Section 11 to insert a new section as follows:—

(1) No body of persons shall regulate or attempt to regulate the minimum price for a commodity unless it acts in accordance with an arrangement approved by the Minister by Order made under the next succeeding subsections of this section for the time being in force and in accordance with such conditions as may be specified in such Order.

(2) A body of persons may submit to the Minister a draft of a proposed arrangement (in this section referred to as the arrangement) for the regulation by such body of a minimum price for a commodity.

(3) The Minister may, as he thinks fit,

(a) refuse to approve the arrangement;

(b) by Order approve the arrangement, subject to such conditions as he thinks fit and specifies in the Order.

(4) The Minister may by Order revoke or amend an Order under sub-section (3) of this section.

(5) An Order under sub-section (3) of this section or an amending Order under sub-section (4) of this section shall not have effect unless it is confirmed by resolution of each House of the Oireachtas but, upon being soconfirmed, it shall take effect in accordance with its terms and the terms of such confirming resolutions.

The purpose of this amendment is to prevent a body of persons or an association from regulating the minimum price for a commodity unless it is in accordance with an arrangement approved by the Minister. I think the House is familiar with the cases which this amendment is designed to cover. In a recent case a member of a particular trade had sold goods below the specified price which the association representing a number of traders regarded as the minimum price or which they had fixed as the minimum price. Although that person continued to sell the goods below the price fixed the association succeeded in inducing suppliers to withhold supplies until the particular trader concerned complied with the price regulations which had been made by that association.

Leaving aside entirely the question of arguing as to whether in present circumstances price cutting is either desirable or beneficial, it seems entirely wrong that any association acting without the authority of a statute or without ministerial authority should arbitrarily decide a price and, if an individual trader or individual traders refuse to comply with the price so fixed, attempt to impose a penalty by the withholding of supplies.

I do not know whether it is always desirable here to mention specific cases but this particular case evoked considerable public interest and received a great deal of publicity. It appears to me to be the type of case this Bill is designed to cover and the proposal in Deputy McGilligan's amendment would ensure that no association, organisation or body of persons could fix or regulate or attempt to fix or regulate a minimum price for a commodity unless that organisation or association had the sanction of the Minister for that arrangement.

I do not think there is anything in the amendment which will conflict with the terms of the Bill. In fact, if the amendment is accepted it will enable the particular abuse to be dealt with or prevent that particular abuse from occurring and will provide legislativesanction for the Minister to enforce compliance with a particular arrangement of which he approves.

This amendment, together with amendments Nos. 37 and 38, raises of course the big issue as to how this problem of restrictive trade practices can best be approached. I take it all three amendments stand together because it is the one question that has to be debated in all three of them. That question is should we approach the problem of restrictive trade practices by providing for their investigation and eradication following such investigation when it has been demonstrated clearly that they are contrary to the public interest? Or should we in a general way prohibit them all forthwith without investigation and then only permit their restoration as consideration of applications for their restoration proceeds and as some case for them can be shown?

This is naturally one of the big questions I had to decide in formulating this Bill and I came to the conclusion that it would be better to proceed with the Bill in its present form rather than in the alternative form suggested in these amendments both because of my own recollection of certain problems that had arisen here and because of the experience in other countries. Investigations that were carried out in other countries seemed to show that it would be very dangerous to proceed by way of a general statutory prohibition on defined practices without any previous investigation of the circumstances of individual trades.

It is true that the British White Paper which was published in June, 1951, indicated that they were then contemplating proceeding in that way, although the White Paper admitted that some minor arguments could be advanced in favour of the retention of price maintenance arrangements in certain cases. In fact, the British have not adopted that procedure. I think they are having second thoughts and are now questioning the wisdom of proceeding on the lines indicated in the White Paper published a couple of years ago.

As Opposition Deputies know,officers of my Department went under a technical assistance project to the United States of America to examine the experience there in the matter and to discuss the operation of the various State and federal codes there with the officers responsible for them. They got more or less unanimous advice —off the record—from those who had the responsibility for making the United States laws effective that it was far better to proceed in the way contemplated by this Bill, that is taking action only after investigation showing action to be justified rather than by attempting to prepare statutory definitions of certain practices and prohibiting them absolutely.

This particular amendment relates to retail price maintenance. Many Deputies will remember that there was lively public interest before the war in the practice of some shops in cutting the price of cigarettes. Cigarettes are the most obvious example we have of goods affected by retail price maintenance agreements between the manufacturers and the retailers. In that connection the strongest representations in favour of the State taking action to prevent the continuance of the price cutting tactics of certain shops came from the trade union representing employees in that particular type of establishment. The trade union argued that the operation of these cut price shops was not merely prejudicing the employment of their members but was also restricting the union's power to improve their remuneration.

I do not want to be taken as saying that I agree entirely with that point of view. I do not. But I think it would be very undesirable that we should dismiss it completely without examining the desirability of prohibiting straight away the operation of agreements of that kind without giving the trade unions, or the traders or the manufacturers concerned an opportunity for making the case they believe they can make, that the arrangement operates to ensure better service to the public or more regular conditions in the trade and that any departure from it would be contrary to the public interest.

It may be that they could not convince the fair trade commission that their case was a sound one, but I certainly think they should be given an opportunity of making it and that we should not proceed by legislation to ban all these arrangements without giving those who have devised them an opportunity of producing the justification for them. The same applies to a number of other matters that would arise under these amendments.

We know that petrol companies are making exclusive dealing arrangements at the moment with garage proprietors. The proprietor enters into an agreement to sell only a particular company's brand of petrol and the company, on its part, undertakes not to supply that brand to other traders in the vicinity. From many points of view that is one of the most objectionable types of restrictive trade practices. Yet, it will be strongly argued by the garage proprietors, and I think by the trade unions who cater for the employees of garage proprietors, that it would be contrary to the public interest that petrol pumps should be installed at hotels, public-houses or other places which are not motor garages and are not equipped to give service to motor owners or even to repair a puncture in a tyre, and that there are good reasons of public policy, including a diminution of distribution costs, if delivery is confined to retailers who are bona fidegarage proprietors.

Again, it is possible to argue both ways. Petrol companies contend strongly that their present arrangement has cut the cost of distribution of petrol by some fraction of one penny per gallon. Whether that is true or whether it is in the public interest that they should do that, even if it is true, are matters upon which it is difficult to arrive at a conclusion. I do not think we should attempt to do it until all the facts have been carefully sifted by the commission and a report on those facts made available to us. I suppose that in respect of every restrictive practice some case can be made that it is not contrary to the public interest. We all feel that thearguments in favour of these practices are thought of afterwards, that the practices are devised first in the commercial interest of the people concerned and that only subsequently they come around to thinking of arguments based on the public interest to justify them. There may be cases in which many of us, as individuals, would take a chance on prohibiting a practice straight away without even hearing the case in justification for it believing that the public interest would thereby be served. But taking this whole problem of restrictive trade practices, the view which I urge is that it is safer and wiser to proceed in the way contemplated here, to establish an investigating authority and to act only when that investigating authority has sifted the facts and has published a report which makes it clear to us that action is necessary in the public interest. None of us could possibly foresee the immediate consequence on many trades and on many classes of employment if these general prohibitions were enforced without further examination, getting automatically the effect of law on the day this Bill is passed through the Oireachtas.

Deputy McGilligan's amendments also contemplate that the subsequent application to be allowed to restore, in individual cases, the practices which will be banned under these provisions should be made to the Minister for Industry and Commerce. It is obvious that he just could not give a decision on a matter of that kind, a decision which he would almost certainly be required to justify fully here, without carrying out an investigation as thorough as the fair trade commission would have to make. It would be an undesirable arrangement in which the Minister and the fair trade commission would be simultaneously conducting inquiries into the circumstances of particular trades or the restrictive practices operating in them.

It is true that in the Industrial Prices and Efficiency Bill, 1947, I contemplated action somewhat along these lines. I did not propose that investigations should be undertaken by the Minister but by the Prices Commission which was to be established under that Bill.But we did then contemplate a general ban on certain price agreements unless they were submitted to and approved by the Prices Commission. However, we are now dealing with something more than retail price maintenance. As we are dealing with restrictive practices of every kind, I would strongly urge that we should not proceed upon the basis contemplated in these amendments, that it is wiser to proceed by way of prior investigation before taking action.

It is also obvious that any such general prohibition as is proposed in these amendments would lead to an immediate rush of applications by various trades to have fair trading rules prepared under Section 3 or permission given by the Minister for Industry and Commerce to restore the practices, as contemplated by Deputy McGilligan, and that no machinery of inquiry or investigation could possibly hope to dispose of a proportion of the applications in any reasonable time and, in the meantime, there would certainly be very wide confusion in many trades and possibly serious repercussions on employment in them. That view may be wrong, but it is because that element of uncertainty is there that I urge the Dáil to agree on the general principle around which the Bill is framed, prior investigation before action rather than the alternative method which these amendments suggest.

I do not know whether, if this section was inserted, it would result in the situation which the Minister has stated or whether it might be desirable to amend the amendment to the extent of deleting the word "Minister" and inserting the words "fair trade commission." It would be open to any body or organisation to make a case to the fair trade commission which in turn would have to report to the Minister because either investigation by the fair trade commission, or, if this section was inserted, investigation by the Minister, could not be made effective unless the Minister took action by means of promoting a Bill or an Order in the House. The cases which this section is designed to cover are those whichI mentioned where an association takes action to prevent a person who does not comply with the requirements of that association's views on a particular matter, from receiving supplies of goods either at normal trade rates or at all, as occurred in certain cases. I think the Minister should consider the desirability of accepting this amendment with the substitution of "the fair trade commission" for the "Minister." Otherwise there might be great delays in dealing with cases in which individual traders may have difficulties when the commission is established. It is true, as the Minister stated, that the White Paper which was published in Britain has not been followed by immediate legislation but that White Paper was published. I think, in June, 1951, by the then Labour Government and before action could be taken on it or before that Government introduced legislation, there was a change of Government.

I do not know whether the Conservative Government have the same views on resale price maintenance. This particular amendment, if accepted, would prevent the type of case I referred to earlier where a trader, in order to give what he considered was value to the public, was subsequently penalised by members of an association making representations to his suppliers and ultimately succeeding in withholding supplies from that trader of the particular goods which he was selling. That may seriously interfere with the carrying on by any individual trader of his business or certainly prevent him carrying it on in the way in which he wanted to carry it on.

I agree that if this amendment resulted in a great number of applications being made to the commission or to the Minister after the enactment of this legislation, it might cause dislocation in the operation of the Act when passed, but I think that could be avoided and, in any case, it is likely that when this Act is passed a great number of associations, as well as individual traders, will seek to secure from the fair trade commission sanction for their operations and will in the ordinary course make applicationto it. I would suggest, anyway, to the Minister that he should consider the amendment with the substitution in paragraph (1) of "approved by the fair trade commission" instead of "approved by the Minister".

I feel that this amendment cuts across the broad principles of the Bill. It is neither feasible nor is it practicable, and certainly I think the Minister has made a good case for further consideration. May I say, first of all, I am not concerned with the after effects of the working of any price maintenance arrangements because I think our main concern is the maximum prices we are working under rather than the minimum prices? It seems to me that the approach in the amendment is that very facile approach we all are heir to. We all like to get the bargain for ourselves, but we are not concerned as to the effect of the bargain on somebody else. Naturally, if we go out to shop, we like to think we know some shop where we can buy an article cheaper than anywhere else.

There is a certain satisfaction in that and the satisfaction continues until we find, in a particular walk of life whether as an employer or as an employee, that our next-door neighbour has gone and bought some particular product we are interested in below the price and we are now suffering because we thought we had been successful in getting a particular bargain. The implications are wide, not merely from the point of view of the employee—with whom I am immediately concerned— but from the whole aspect of maintaining and giving good service and good quality goods and even maintaining individual businesses in many cases.

It seems to me, first of all, that we should look at the results we will achieve through the application of the present principles and machinery in the Bill before we widen its scope to include not merely retail trade but every sphere of activity in the community. It is quite clear that if a group of shops engaged in the sweet-confectionery business is not to be allowed to maintain a certain minimumprice, the same principle could also be argued against the E.S.B., C.I.E. or individual concerns engaged in selling certain goods or services. It raises issues that, desirable as we may feel it to try and break down the restriction imposed on these practices we are hearing about now, may also create a certain amount of chaos and do a great deal of harm to many sections of our people.

Where one has to deal with the problem of maintenance of retail prices, the average person does not object to paying a fair price. It is the feeling that we are being taken advantage of because there is a standard price that makes us go out and look for something else. If we had an assurance that the standard price was a fair one and was justified by reasonable rates of profit, by provision for maintenance and by reasonable conditions of employment right through the whole process of manufacture of that article, at reasonable rates of pay, no one would object to that since every member of the public in turn is looking for those conditions himself either in his business or in employment. But as soon as suspicion arises—and we are entitled to have it because of experience in the past—we want to smash everything we have, in the hope of solving this problem and getting an assurance of a fair price.

In many cases, the existence of minimum standard prices has become, as the Minister said, the guarantee for hundreds of thousands of ordinary workers that they in turn will get fair standard rates of wages or conditions. If, in the hope of solving this whole problem of restrictive practices, we impose now this omnibus principle, we may cause dislocations in practices which, although long established, would probably on examination be endorsed by any reasonable man or woman. We may create difficulties all round us and we are, in turn, leaving the door open, not for the trader who wants to supply cheap goods but for the trader who wants to take advantage ultimately of consumer, manufacturer and supplier.

Those with some knowledge of the "cut-price shops" that existed in Dublin for cigarettes, tobacco andsugar-confectionery realise very well that, however much one may desire to stand for a reduction in prices, the background of many of those shops would not bear investigation, not only from the point of view of fair practices but even from the point of view of the law. We are opening our doors to that kind of abuse. While all of us are anxious to have this Bill made as effective as possible, we should proceed, not only with understanding of the problem, but we should test the ground as we move forward. We have fairly effective machinery in the Bill as it is. We can test it and get some indication as to how much further on we can move.

I am also concerned with the point made by the Minister—and I do not altogether agree with Deputy Cosgrave —that if the amendment were adopted, in so far as it prohibits immediately the making of any arrangements in respect of minimum prices or such arrangements in regard to the supply of goods, automatically you must have a large number of applications to the Minister, or to the fair trade commission if that is substituted, and then you are going to break down, by the very weight of the applications, the machinery we are now trying to devise in the hope that it may prove effective in dealing with the problem. We should not, out of eagerness to settle the problem which has grown up over the years and has become more intense in recent years, try to do more than we are capable of doing at the beginning and in spite of possible repercussions and harm it may create for many thousands in businesses coming under this Bill.

There is one point I would put to the Minister, arising out of a remark he made in the course of his observations. I take it we would all be agreed, in our eagerness to deal with the problem, to see that no injustice is done. Under the existing law there are certain arrangements by certain traders for cash and for a cash consideration covering a period of years. It would be a matter for consideration whether those should be interfered with or not.

I think it is an important consideration also. In reply to Deputy Cosgrave, I am anxious also to eradicate the practices which gave rise to the court proceedings he mentioned. It is not a lack of desire to clear up that situation as quickly as possible that induced me to argue against this amendment: it is rather a conviction that we may destroy the whole attempt by trying to go too fast. It would be much better to go on a basis of investigation leading up to action, rather than try it the other way round.

I am absolutely scattered by the development which appears to emerge from Deputy Larkin's point, that is, that we are not all opposed to price rings. It now appears to emerge that certain price rings are highly desirable and that we ought to walk very warily lest we disrupt them. I understood that if there was one thing about which there was unanimity in this House it was that price rings should be ended. What the purpose of this legislation is at all, if our purpose is not to put an end to agreements to restrict trade for the purpose of exploiting the consumer, I am at a loss to understand. It is the purpose of the Bill. When I first read it, I urged that Section 4 should be deleted, as it seemed to me that that section created facilities for making trade restrictive rules. I urged on the House that we ought not do that, bad enough as we were with all the restrictions that exist, and that we should confine our activities to getting rid of restrictions. If I understand Deputy Larkin aright, the trade union view is that certain restrictive trade practices are good.

That is the point of view of the Bill.

I know, but that is the very point of view against which I most energetically inveighed on Second Reading, and if there was one quarter in which I should have expected to get unqualified agreement with me, it was the Labour Party. If we are to have now a combination between merchants, industrialists and the trade unions to promote other restrictive practices, we may as well throw our hats at it. Picture the position of thefair trading commission. Who is going to make the case against the restrictive trade practice? Suppose such a practice is designed to exploit the consumer and a manufacturers' organisation comes in and energetically defends it. Suppose that R.G.D.A.T.A. also comes in and defends it and then the trade unions come in and energetically defend it. Who is going to make the case against it? I am appalled because I never believed that such a thing could transpire in this or any other country, and it appears to me that the consumer is going to become the subject of not one vested interest but of the most dangerous of all situations, a combination of vested interests. It is common knowledge here that a dozen men, well organised, can overwhelm 10,000 who are leaderless. Who is going to make the case for the consumer before this commission?

I have seen this very dilemma develop in connection with tariffs and quotas. I have seen bodies of manufacturers combine with trade unions to press for tariffs and quotas in order to maintain price levels which, in my opinion, bore most unjustly on other interests in the country, such as farmers or, indeed, the consumers at large. The deplorable situation then developed that it was evident that there was nobody prepared to make a case against it. If anybody did appear to make a case against it, he was attacked from one side as being desirous of sabotaging industrial development, and from the other side, as being desirous of throwing men into unemployment. There was nobody to say that he was actuated by a desire to protect either the agricultural industry or the consumers at large. If there is an agreement between an organisation of distributors, the manufacturers and the trade unions that a restrictive practice is a benefit to them all, who is going to make the case against the practice? Is that not the practical problem?

I have a certain sympathy with the Minister's careful approach and his rational desire to avoid precipitating chaos by well-intentioned general regulations which, in practice, will notwork. Could there not be some kind of middle course pursued? Could we not arrange that a term of months or years would be prescribed within which any agreement for the control of prices, methods of distribution or the three matters referred to in amendments Nos. 36, 37 and 38, would become illegal, if, before the end of that term of years, its nature was not registered either with the fair trading commission or with the Minister for Industry and Commerce? The really effective way to put an end to evil restrictive practices is to let in upon them the light of day. I am actuated by no zeal at all to prescribe long terms of imprisonment and heavy penalties. I believe that public opinion is one of the most effective methods of putting an end to restrictive trade practices or other abuses of that kind.

I see the Minister's point. He does not want to make illegal to-morrow morning a thousand practices of which he may have no knowledge at present. Would it not be possible to say that, after 1st January, 1955, practices coming within these categories will be illegal if, prior to that date, full particulars of the agreement implementing them have not been deposited, either with the Minister for Industry and Commerce or the fair trading commission? If a proviso of that kind were made, as these registrations came in to the Minister, those of them which prima facieappeared to be objectionable could promptly be referred to the commission to investigate, the others being set aside until the commission has time on its hands to look into them. The Minister could forward the ones which seem objectionable and ask the commission to investigate them with any other cases before them.

Thus, everyone would have full and fair notice that, if they wished to continue a restrictive trade practice, they must file full particulars with the Department, or, if they were not prepared so to file, put a stop to the practice before 1st January, 1955. Unless something of that kind is done, I foresee a situation in which some of the worse restrictive trade practices operating in this country will continue under an umbrella consisting of a combinationof the trade unions, the manufacturers' federation and distributors' organisations acting in collaboration for the maintenance of the most evil practices for the restriction of trade which it is possible to conceive.

One of the practical difficulties that would arise in proceeding on any such course as that suggested by the Deputy is the constitutional problem which might be involved in too wide a delegation of legislative powers by the Oireachtas to a Minister. I came to the conclusion, in framing the Bill, that an Order made by the Minister under it might have such wide repercussions, affecting a large number of traders and a very large number of workers employed by them, as well as the general community, that the Minister should not have the right to make that Order without getting it confirmed by the Oireachtas, that it would represent too great a delegation of legislative functions by the Oireachtas, and that he should come back here and get the sanction of the Oireachtas. If you accept that idea, it seems to me that there is no really practical alternative to the course proposed in the Bill.

With regard to the general question raised by the Deputy, I think the best thing I could do is to refer him to what I said when dealing with the Second Reading. I said:—

"My argument is that these arrangements—retail price agreements and similar restrictive practices—operated by private trade associations are open to the suspicion of being operated for the benefit of those engaged in that trade and they should be approached with suspicion. The idea is to have them investigated in that mood by this proposed commission and sanctioned only if the case that they are operating to the public benefit is overwhelmingly established."

I think we have to rely upon the commission to inject into the examination of all these restrictive practices the element of suspicion that should be there. They should come to their task full of suspicion wherever restrictive practices are under examination and only permit the maintenance of thesepractices, as they were previously operated or in some modified form, when that suspicion has been completely removed by the overwhelming nature of the case made for them by the parties concerned. We have to rely on the commission for that.

Amendment, by leave, withdrawn.
Amendments Nos. 37, 38, 39 and 40 not moved.

I move amendment No. 41:—

To add to the section a new sub-section as follows:—

(3) Where a person is charged with having committed an offence under this section and such person is an employee of another person or of a body corporate or incorporated body it shall be a good defence in law if such a person shall prove to the satisfaction of the court that at the time the offence charged against him was committed he acted under the orders of his employer or employers.

The purpose of this amendment is to try to clarify the position under the section in regard to the ordinary employees. It is sought to establish, in respect of a person charged with having committed an offence against the section, that where such person is an employee it shall be a good defence —and here I have frankly to admit to some dubiety—if he is able to plead that he was acting on orders. I see various objections to the amendment from the Minister's point of view, but it does seem to me that he should bear in mind that we are dealing now with something that may be fairly complicated so far as the worker is concerned. If we take it that certain Orders may be made by the Minister of a very widespread and complicated nature, and that in the application of these general Orders an employee is involved, it is quite possible that, so far as he is concerned, not merely will there be ignorance but even a lack of appreciation of the effect of carrying out these orders. I agree that the amendment as it stands is not altogether satisfactory but I do feel that, in so far as we seem to fail to make a distinction between guilty parties, aneffort should be made to make the matter somewhat clearer. It would be regrettable if we found that an ordinary worker is required not merely to carry out orders but in addition to apply to these orders a judgment based on knowledge which it would not be possible for him to acquire. I am not pressing the amendment but I think it should be considered.

The principle which it is sought to establish by this amendment is essentially unsound. The law does not accept as a good defence the fact that an employee was acting on the orders of his employer, and it seems, on the face of it, to be wrong that an employee should thereby be released from the penalty attaching to a breach of the law. Our experience in relation to other Acts is that a provision of this kind would make the enforcement of the law practically impossible. Just try to visualise the various cases that might arise. A firm has been confining supplies to certain individual retailers and refusing supplies to others. The fair trading commission says that that is a restrictive practice and that supplies must be made available to all traders. The firm says: "Right; we will give an order to our sales manager to supply these traders," but they continue to supply only favoured traders. You cannot establish that fact without reference to the records of the firm. If the secretary takes the records home or loses them, you may be placed in a difficulty unless you can bring a charge against individual officers of the firm who are, in fact, carrying out the orders. That is particularly the case when you are dealing with a public company, any company formed under the Companies Acts. Everybody who has an effective voice in the management of the company is, in fact, an employee.

Would the point be met by leaving out sub-section (2)? I think we can get an altogether wrong impression of this Bill if we view it primarily as a penal instrument. The Bill deals with restrictive practices which we wish to change, and there is no necessity to visit such breaches of the law with these heavy punishments. To senda person to penal servitude for ten years in this context seems utterly ludicrous. I do not think that the Oireachtas should envisage penal servitude for our neighbours in reference to matters of this kind.

We are only dealing with those who have defied a law of the Oireachtas or done something which has been declared to be illegal.

If we were defending the natural law and providing penalties for crimes such as murder, theft or serious offences of that kind, the imposition of heavy penalties would be justified but there is a great deal of regulatory legislation, conflict with which is not as grave as conflict with legislation designed to defend the natural law. This is regulatory legislation. I do not want to diminish or belittle in any way the conduct of some person who would set himself up against the law of the country. That in itself is a grave matter but I think our purpose is to stop certain practices and to bring guilty parties, be they joint stock companies or individual citizens, who are primarily responsible for the attempt to perpetrate these practices, to book and force them to put an end to these activities. It is not the people who are guilty of these practices with which we are primarily concerned; it is the practices themselves. We want to eliminate the practices and to do it in no vengeful manner.

Look at sub-section (2):—

"Every person who aids, abets, or assists another person or conspires with another person, to do anything (whether by way of act or omission) the doing of which is declared by sub-section (1) to be an offence shall himself be guilty of an offence."

That seems to be a more appropriate section to an Act dealing with mayhem, arson or some hideous and disgusting crime with which no respectable citizen would conceivably have any contact whatever. Take one of the limiting trade regulations with which our social life at present swarms. There are thousands in operation at the present time. I think this sub-sectioncatches every person who handles merchandise in any way. Let me try to offer a reductio ad absurdum.Take a firm making fashionable ladies' clothes. It is a universal practice in the trade that whatever shop in a town handles these fashionable goods asks the manufacturer not to sell these goods to any other shop in that town. These practices exist. Suppose the practice were stopped and the fashion manufacturer continued to operate the restrictive practice. Every shopkeeper who accepted goods from the fashion manufacturer would become an offender under Section 11, whether he had any part in making the arrangements or not. I do not rebut the suggestion that if he were on the receiving end of an illegal practice instituted by the fashion manufacturer, he would be in some sense aiding, abetting or assisting the manufacturer to carry out a practice which had been prohibited.

Without that sub-section, or something like it, the section in itself would be ineffective. Of course it is the courts which will decide whether an offence is committed, and the gravity of the offence. They will also apportion penalties.

I agree with the view put by Deputy Larkin to the Minister. When I was trying to deal with the flour business it was thought necessary to institute a system of costings and that involved getting certain fundamental information from all the mills. It was put to me that the officers who were being vested with the authority to require the information should be authorised not only to deal with the firm concerned but to go to the clerks in any department to get the information. I said: "I shall never give that power to a Government inspector."

I never gave power to any Government to go to a business house and ask an old and trusted employee to betray his employer. If we want to pursue an employer we should go for him and bring him before the courts but it is not fair to ask a man working side by side with an employer for 30 or 40 years and who is on termsof the most intimate confidence with his employer to betray the trust reposed in him by his employer. The employee feels himself bound by the closest ties of intimacy and trust and to ask an employee to betray his trust is simply not justice and we should not do it. If an employer is fractious and refuses to conform with the provisions of the legislation passed in the Dáil, we should bring the employer before the court and invoke the proper remedies against him.

We should never go to his employee and put him in the horrible dilemma of having to break the law or his trust. I can conceive many honourable men who will say: "I will not betray my trust under any circumstances. Confidential information has been given to me on the assumption that I would not disclose it. I accepted that trust and I will not break it under any circumstances." I can see that in certain circumstances the Oireachtas may have the right to require that trust be broken but I do not think that that is justified in this case. If there was a crime like murder, manslaughter or one of the greater crimes in question, the Oireachtas would have the right to act in order to prevent the commission of a crime but I do not think that offences contemplated in this Bill come within that category. I do not think it is fair to put our neighbours in that dilemma. I think the Minister and every Deputy in this House would feel, if they were put in a dilemma of that kind, constrained to say that they would not break their trust. Let it be fought out with the employer but do not come to me and require me to furnish you with confidential information that the employer gave me.

That is not precisely the situation in this sub-section.

The section in question referred particularly to contraventions of an Order made under Section 8. They are listed under six different headings. A whole number of matters could come under those headings. Any person, a shop assistant, clerk, etc., who aids, abets or assists another person leaves himself open to committing an offence under the Act. In Section13 the penalties are set down. They are very heavy penalties. There is no saving clause at all in that section, not even in respect of the most minor worker, the most humble employee or, if I might say so, the most ignorant employee so far as the conduct of the business is concerned. When we come to deal with a corporate body we make a specific exception in the case of the director or a member of the committee of management who "shall also be guilty of an offence unless he shows to the satisfaction of the court that he did not consent to nor approve of the act or omission constituting the offence and that it was not facilitated by any neglect on his part."

I have a good deal of sympathy with the Minister's point of view on this particular point but I do think that to the extent an effort was made, however slight, to deal with the case of the director and the committee of management who would not have a knowledge of all that was being carried on in the business under their control, some regard should also be had for the wage earner, the clerk and the shop assistant working in the same business. We do not even attempt to have some regard for the position of the ordinary worker. I am not a lawyer and I am not trying to preach what the attitude of the court should be to the director who has no knowledge of this matter or the shop assistant or clerk who was carrying out instructions and was not aware he was committing a breach of the Order. That is a matter for the court. Whatever attempt we may make to ease the position of the director or committee of management acting without consent, we should have the same regard for the ordinary worker.

I think that is implied. I do not believe you would alter sub-section (2) by putting in words such as "knowingly", "deliberately" or "acting with malice aforethought". If some such words would, in fact, have any effect under the section I would be prepared to consider it. Deputy Larkin is concerned about the possibility of some innocent employee being charged with an offence under this section.

I am thinking of the lorry driver who is very frequently prosecuted for offences under the Road Traffic Act but everybody knows it is the employer's responsibility.

That may happen. The specific case I have in mind is the secretary of a trade association who is, in fact, the instrument by which the restrictive trade practices are enforced. He may be a chartered accountant or a professional secretary, but certainly not the trader in any sense of the term. I will look into the wording and see if there is any point in it.

May I draw the Minister's attention to one distinction between sub-section (2) of Section 11 and the provision in the section dealing with directors and servants of companies and other officers of companies? In the case of sub-section (2), Section 11, aiding and abetting offences brought against a servant or any other person or a workman, the burden of proof is on the State. In the case of Section 12 the burden is thrown on to the other.

That, of course, is an important distinction.

Amendment, by leave, withdrawn.

I move amendment No. 42:—

To add to the section a new sub-section as follows:—

(3) No prosecution shall be heard or determined until an injunction shall have been obtained under Section 10.

To a certain extent this amendment is tied up with the amendment which I put down, amendment No. 31, to Section 10 but it can stand on its own merits irrespective of the fate of the amendment that I proposed to Section 10. There are two purposes behind this amendment, one is my desire to allow the citizen who is affected by anything done by the commission or done by the order of the commission when giving legal effect to an Act of the Oireachtas to have resort to the courts if an injustice has been done or appears to have been done to him.

I have a very uneasy feeling that in our desire to get rid of these restrictive practices we will do a grave injustice to some individual citizen and I want the individual citizen to have resort to the court on the lines I suggested.

The second purpose I have behind this amendment is much on the line of what Deputy Dillon said, that the approach should not be via the criminal law but via the civil law. Our Statute Books are cluttered up with Acts very similar to this section and the section provides heavy penalties for doing this, that and the other. Experience has proved in every court where the legal system is similar to ours that undue penalty provisions defeat themselves. I may be wrong in this but I believe the reason why the provision for an injunction to the civil courts was thought of was because of the failure of the criminal procedure to deal with matters of restrictive practices. The Minister probably has more resort to the literature on this subject than I have. Such limited reading as I have been enabled to do has led me to the conclusion that the suggestions of injunction proceedings in the civil courts, which are comparatively recent in origin, were made because of failure to deal with the situation through the criminal law. I do not know that any other country has a provision in its legislation dealing with restrictive practices or trusts or monopolies or matters of that kind such as is contained in Section 10 of this Bill providing that it shall be lawful for the civil courts to grant an injunction. I think that if we get this Bill through we shall be the first country to put that on the Statute Book. I may be wrong but that is my impression. I suggest to the Minister, in complete agreement with my colleague, Deputy Dillon, that the whole approach should be on the civil side of the courts. It is far more effective to obtain an injunction from our courts than to get any number of prosecutions in the District Courts. The machinery of injunction is a powerful instrument to secure the obedience of the individual citizens concerned to the order directed by that injunction. We have agreed to the procedure by injunction.

I wish to give a person against whom an injunction is sought, an opportunity of defending himself when those proceedings are brought against him. If we have that procedure—and it is a very powerful machine to secure compliance with the law, far more effective than any number of prosecutions or convictions in the District Courts or in the criminal courts—then I think we ought to stick to that procedure alone, for the present in any event. I have no belief, like Deputy Dillon, in all the prosecutions in the District Court, and so forth. I believe it is just a facade of having, if you please, a company prosecuted in Green Street and indicated before a jury. It is nonsense and there is the danger that if the people come to think that it is nonsense the law will become ineffective. Nothing tends to bring about more insecurity and disbelief in the law than a number of restrictive proceedings of a penal character which become ineffective. Looking at it from the point of view of principle, restrictive practices grew up in admitted, as it is now the law in this country, exercise of private right. The objection was that these practices infringed other persons' private or civil rights. So far as they did not infringe other persons' private rights then they were lawful and declared by our courts to be lawful.

The whole subject of restrictive practices deals with civil rights. It was the British Common Law that first developed the idea of restrictive practices when it developed the notion of agreements in restraint of trade. It is a tribute to the genius of the British Common Law that they did that and saw many long years ago the evil to the community from restrictive practices of that character. I want to emphasise that the whole matter is one of private right. We are introducing the element of public wrong into this by bringing in criminal proceedings. I admit that the thesis in considering this Bill is that the public interest may adversely be affected by these restrictive practices and to that extent there is justification for bringing in criminal law.

I think we would have a very reasoned attitude towards the Bill if these restrictive criminal proceedings, which will very largely, if not completely, be ineffective in practice, were not contained in it. The British Government brought in a Bill to deal with restrictive practices. It set up a commission. I am subject to correction but I understand that they have given only two reports since that commission was set up. Here we envisage a procedure of ten years' penal servitude for all sorts of workmen, employers, secretaries, and so forth—a procedure of heavy penalties. It will just go the same way as dozens of provisions of a similar character which are on the Statute Book and which are never operated. Unless you can get strong public opinion behind this measure it will not be effective. For that reason I have insisted that, so far as I am able, there should be some precautions to enable private citizens who think they do or who, in fact, may suffer an injustice to have resort to the courts of justice. I have had some experience —I think I may say considerable experience—of the operations of quasijudicial tribunals. I assert that, by and large, they are very injurious to the public interest in their operations. Experience in other countries will bear that out.

My chief objection to this particular type of tribunal to be set up under this Bill is that it is political. I do not think that point can be made too often. The composition of its members may change with different Governments. The outlook of each tribunal will be different according to the political philosophy actuating each particular Government. Whether that may or may not be, I think the Minister will find, if he reads some of the reports in connection with other countries where they have endeavoured to deal with practices of this kind, that it has not been found satisfactory for a tribunal to be at once an investigating body, a prosecuting body and a judicial or semi-judicial body. It has not worked and it has not succeeded in eradicating the practices which it was set up to eradicate.

When I moved this amendment thatno prosecution shall be heard or determined until an injunction shall have been obtained under Section 10, I had that two-fold object in mind— that a person who is sought to be injuncted in the civil courts should have an opportunity of making his case. If he is prosecuted, all that has to be done is to prove the Statute or Order that is given legislative effect here and then conviction must follow. If he has an opportunity, on injunction proceedings, to defend himself, there will be no prosecution if it can be shown that he is not guilty. As we are taking very tentative steps under this Bill—and that is all that can be claimed for this Bill—at least we should stop short at injunction proceedings and leave aside the matter of criminal proceedings for the time being at any rate, until we learn more from practice and from the activities of the tribunal that may be set up.

If we have to rely upon injunctions in my view we will get nowhere in the enforcement of the Orders made under the authority of this Bill. The provision for proceedings by way of injunction is inserted in the Bill on the assumption that if the injunction is disregarded the courts will deal very severely with the offender. It is true also that our experience suggests that proceedings against individuals for offences of the kind which may arise under this Bill, taken in the ordinary courts on the basis of criminal law, are frequently very leniently treated by the courts. I think we must contemplate the injunction procedure, where special issues arise or where the case is of considerable public interest or of considerable magnitude, and the criminal court procedure for the ordinary day to day contraventions of the law which may arise where the Minister would be required to take action. This procedure which we have here is not as unique as Deputy Costello has suggested.

We have taken notice of the American law in this regard which provides for both criminal court proceedings and for injunctions. It even contemplatescivil proceedings where a party, claiming to be injured by reason of the non-observance of the law, may proceed in the courts for damages. But in all cases there, I understand, the criminal court proceedings come first and the civil court proceedings come subsequently, if they come at all. I think it would be impracticable to cut out entirely the proposal for action through the criminal courts. There seems to be no reason, certainly in the ordinary type of case of a minor infraction of the law, where we should have to go through the injunction procedure before taking action in the criminal court.

Has the Minister had access to the MacQuarrie Report in Canada which, I think, was published last year?

It may be available in the Department.

I commend that report to the Minister. I think there were six articles on it given in a recent number of the Canadian Law Review,published in November or December of last year.

Is the amendment being withdrawn?

I am not satisfied that the Minister has answered my objections. I know that the Minister objects to the district justices and thinks that they do not do what the Department wants them to do.

That was not my point. Take the ordinary case of a minor infraction of the law by some firm. Is there any reason why we should have to go through the injunction procedure before taking that firm to the court for a fine of 2/6?

I think the Minister will give me credit for knowing something about court proceedings. May I say this to him—one injunction granted and you will have no trouble?

I think the Minister is labouring under a peculiar error. There are a lot of respectable citizens in this country still who do not see themselvesin the dock either in Green Street or in the police court and who would be horrified at the thought that, in any circumstances, they could be arraigned in the dock and convicted of an offence for which the penalty, prescribed by Oireachtas Éireann, can be ten years' penal servitude.

They can avoid that by keeping the law.

This Bill proposes to lay down that for an infringement of the law made under Section 8, if tried on indictment, there is to be a penalty, at the discretion of the presiding judge, of ten years' penal servitude. Surely, we ought to have some respect for those elements in our community who would say: "Whatever the law is I will conform to it because it is the law, and I would regard it as unthinkable that I should appear in any criminal court in this country to be convicted of having broken the law." There are occasions upon which the Executive interprets the law in a certain sense. A man may say: "My best advice is that they are wrong and I want some tribunal or some procedure other than an appearance in the dock in Green Street whereby that issue can be tried out. I invite them to invoke the courts and ask the courts to order me to carry out the law in accordance with the Government's interpretation of it. If that is done, I will conform to it promptly after I have had a chance to make my case as to what the correct interpretation of the law is."

All that I am objecting to, and asking to be delivered from, is that the Government which, in fact, is the Minister, and which in practice is a civil servant, shall say to me: "I interpret this Order as confirmed by the Oireachtas in a certain sense. You claim it is in another sense. You are wrong and you will do what I tell you to do and if you do not you will turn up in Green Street."

Now, that to a principal officer in any Department of State is a routine duty. It does not cause him very much trouble to initiate the appropriate machinery for arraigning that citizen in Green Street. But see what it meansto the citizen. It is not an agreeable thing to be returned for trial and to have to appear in the dock in Green Street. That can be a very distressing experience for any citizen. I do not think it is right that Oireachtas Éireann should quite casually say: "Oh! bring the poor chap up to the District Court and fine him 2/6." I do not like to be fined 2/6 in the District Court. I never was fined in the District Court. At night, I light the lamp on my bicycle not because I always think it is necessary to do so, but because it is the law. I think it is a good approach for the ordinary man, if he does not like the law, to agitate to get the law altered. In this section we are dealing with a very responsible body of people, with the members of the mercantile community. They are people who have a sense of public duty. Therefore, I suggest that we ought to give them the right, if they wish, to challenge the Minister's interpretation of the law in the civil court.

Suppose the Minister is required to seek an injunction against some fellow who knows perfectly well that he is acting in the wrong. He is not going to contest the injunction proceedings. Am I not right in thinking that he can simply make no appearance and so the court will give the injunction after offering him the opportunity of appearing to resist it? If he makes no appearance, and does not attempt to resist it, the injunction issues automatically. If, however, he continues, after the Minister has given him the chance of justifying himself, to violate the law, then he can have no complaint if he is brought to the criminal court. He now knows that he can be brought back to the civil court, and that the civil court will apply the appropriate penalty for failing to carry out the terms of the injunction, or he can be prosecuted in the criminal court. Everyone will know that he has continued to break the law, and I think public opinion will sustain whatever penalty it is appropriate to impose upon him, whether they approve of the law or not. No man has the right to break the law, but he has the right to agitate for its alteration. Therefore, pending its alteration, he must comply with it.

I urge strongly on the Minister that he should bear in mind that here we are dealing with an important section of the community. We must proceed on the assumption that, whether they be merchants, manufacturers or their employees, they are respectable citizens earning their living and contributing to the national welfare. I urge that persons so circumstanced ought to be given the chance of making their case, and that it is only when it is perfectly clear that they are resolved to break the law that it is appropriate either to bring them to Green Street or ask a judge to issue an injunction and impose a penalty on them for their disobedience of the law.

There is only one comment that I omitted to make on the Minister's statement. I just did not get the precise words he used but he referred to the contemplation of the American procedure of civil proceedings by individuals concerned. If this Bill becomes law and there is an Order given legislative effect to by proceedings of the Oireachtas, then a private individual who suffers wrong, loss or damage by the infringement by a combination of traders or trade associations of that law, can bring civil proceedings of his own. In our country, under our law, he would then be in a position of being damnified, suffering loss by wrongful act of any person. He could bring it under that cause of action or under conspiracy, which is agreement by two or more persons to do something which is declared to be wrong by law. He still has recourse to the courts. You have that remedy as well, the remedy of the individual, and you have the remedy of the injunction and you would have a cleaner Bill and a better Bill, a Bill that would more ensure public confidence and opinion than all this nonsense—because I think it is nonsense—about ten years' imprisonment for a corporation.

You would have a completely ineffective Bill if you did not insert some provision that people who break the law can be charged in the courts with that offence. If there is any room for argument as to what thelaw is, then the injunction proceedings can be followed. But where a man breaks the law and knows he is breaking the law and gets away with it and, when the law catches up with him, merely says: "It was good while it lasted", is there any reason why we should proceed in any way other than to put him in the dock and charge him with the offence?

The Minister does not seem to understand the effectiveness of an injunction order. It is far more effective than putting a man in the dock in Green Street, not to talk about the District Court.

I appreciate that fully.

The Minister is arguing as if there was no remedy here. An injunction is a far more effective remedy than criminal proceedings. A person will not get away with it in the case of an injunction but he will get away here by a fine.

The Minister seems to think it is as simple as saying: "Here is a fellow breaking the law. If the law catches up with him you catch him by the neck and you put him in Green Street." If it were as simple as that, there would be some power and force in the Minister's argument. Suppose there is a legitimate case of difference of opinion.

Then the injunction proceedings would normally be used.

So says the Minister but I can assure the Minister, having like himself sat on both sides of the ministerial table, that every case of this character does not reach the highest echelon of the Civil Service, never mind a positive ministerial decision. If every case of this kind had to, government would break down in our kind of society. I am putting the case where you have a perfectly honest difference of opinion between the two parties and I suggest to the Minister that the number of cases in which a man is going to persist in law-breaking, everybody knowing that he is breaking the law, is very trivial, very small but the case where a man who honestlybelieves he is not breaking the law but would most bitterly resent conviction under the criminal law is a matter of great gravity. I think the Minister might at least bend his mind to it. I do not believe this procedure of the injunction is going to weaken the Minister's hand or delay the expedition with which Orders made under Section 8 can be put into effect but it is going to ensure that injustice will not be done and I think it will relieve the minds of a great many Deputies that the powers of this Bill, while effectively used, will not result in honourable and decent men being exposed to affront which they ought not to be exposed to by Oireachtas Éireann and that decent men will not be put in a criminal dock to which they do not belong.

The suggestion is that we must never proceed in the courts without going first for an injunction. That seems absurd having regard to the case put that some of these matters may relate to quite trivial offences.

Do you think you ought to be prosecuting people for trivial offences?

If the Minister considers that the offence is one that should be dealt with—and the Minister in that regard will very largely be influenced by public opinion in such matters—then I certainly think they should be.

That is a very dangerous doctrine to be enunciating —ministerial discretion in reference to the administration of the criminal law.

Without pressing the Minister unduly, do we intend under this legislation to initiate a series of prosecutions for trivia? I suggest that that is the very purpose we ought to avoid in this Bill.

What is the good of passing laws and then saying we will not enforce them.

No. We do not want to set up a chronic persecution of the trading community. We want to stopabuses and I suggest to the Minister that nobody in the House envisages hundreds of minor prosecutions under this Bill. Does the Minister? I do not think he does. He does not envisage a vast army of inspectors snooping around the country looking for every kind of minor breach in order to maintain a barrage of prosecutions in the District Court. We only envisage a person being brought to court under this Bill if he is carrying on a conspiracy to restrain trade. Is not that right? If the Minister would reflect a moment he would realise that it is desirable to put on himself and his own Department or his successor and his own Department the obligation to go against a person by way of injunction if legal proceedings are in contemplation. Remember, the warning that, if a person continues in his present practice, injunction proceedings will be taken against him, is in itself a powerful inducement. I am urging the Minister to think this over. He ought not to have a multitude of 2/6 prosecutions. The only prosecution that ought to be brought under this Bill is a case which would justify injunction proceedings. When there is no other means of stopping the abuse then resort to the courts ought to be had. I am suggesting that the first resort should be the civil court and then, at the Minister's option, criminal proceedings or reference back to the civil court.

As a matter of policy, I do not disagree, but here we are told you must never proceed in any case in the criminal courts unless you first go for injunction. That is an unreasonable limitation on the discretion of those responsible.

I do not want to be unreasonable, but I would be obliged if the Minister would reflect on the matter and consider if, as a preliminary in any case, he would accept that general restraint upon him and, if it proves in practice to be impracticable, come back to the House and say that we have to change it.

All we are taking power for here is to provide for the prosecutionof offenders under the Bill through the courts in certain circumstances.

Is the Minister claiming ministerial discretion now as to when prosecutions will be instituted where breaches of the law have been ascertained? Who is going to say what, as Deputy Dillon says, is trivial and who is going to say what is not trivial? Is it the Minister or the officials? There you bring in the doctrine which I say and emphasise is a very dangerous one, the doctrine of ministerial discretion in reference to the administration of the criminal law.

The decision would be taken by the legal advisers to the Government on the basis of the evidence in the case.

The legal advisers to the Government will not have any function to perform until the facts are sent to them by the Minister. The Minister, before he does that, exercises discretion, which I object to.

I think it is a desirable discretion to have—whether a case should be referred to the Attorney-General.

It is one of the things that brought the Stuarts down in England—discretion in criminal law. It is not a desirable thing for the Minister to have, whether you prosecute A or B; you will not prosecute A because he has given a Party subscription, but you will prosecute B because he is a member of the opponent's Party.

That is not the type of case that comes along.

That is the sort of thing people would say may happen.

You will have to produce the evidence which the Attorney-General says you have.

The Attorney-General will have nothing to do with prosecutions under this Bill.

He will tell you whether you have evidence to sustain a case.

Having ascertained that you have evidence to sustain a case against A and it is represented to you that he is an executive of the political Party that is supporting the Government of which you are a member and may have evidence against B, who is a notoriously aggressive and unaffiliated person against whom everyone has a grudge and of whom a great many people are jealous, is it not conceivably possible that you will give B the works and tell that fellow A to behave himself, or if he does not he has something coming to him? I think that is quite possible.

It could only happen with about 100 people knowing that it has happened.

It seems to me that it is infinitely preferable to provide that nobody will be subjected to a prosecution unless the Minister is prepared to go to a civil court and satisfy the judge that an evil exists which the judge has a duty to forbid.

Not that an exil exists but that a law passed by the Oireachtas has been contravened.

That is an evil. When a man is transgressing the law the court should direct him to desist from the practice which he professes to believe is not a transgression of the law or what the Minister now asks us to say is a transgression of the law. It is only when a man defies the law that he should be brought to the civil court for a suitable remedy or to the criminal court and prosecuted.

I am quite prepared to agree that in the ordinary procedure under the Bill, certainly in the initial stages, it would be better to get the law declared and made known by the injunction proceedings. I do not think, however, we should say that we should never have the power to bring a man to the District Court and charge him with an offence. Most of these Orders relate to specific things; they prohibit specific things and a person, unless he is ignorant of the law, willknow whether or not he is breaking the law.

I am afraid the Minister's objection to legal procedure and court procedure is so profound that nothing I can say will ever make any impression on him. I withdraw the amendment.

I said before that I have a very high opinion of lawyers in the courts.

You have a very queer way of showing it.

When outside the courts.

Amendment, by leave, withdrawn.
Section 11 agreed to.

I move amendment No. 43:—

In sub-section (1) to delete all the words from and including "unless" in line 31 down to the end of the sub-section.

I move it without the slightest hope of there being even the smallest consideration for it. I drew the attention of the Minister to the difference between this section and sub-section (2) of Section 11, dealing with aiding and abetting, where the burden of proof is on the prosecution while here it is on the accused. That is contrary to the principles of our criminal law and it should not be done. It has been objected to in other countries. It has not worked, and it brings the law into disrepute. You can only have proper respect for the law, proper enforcement of the law, and belief in the law when you stand solidly on principle. It may be difficult for a Department to get a conviction, but it is better to have that difficulty and keep the principle enshrined in our Constitution and law that a person is not to be found guilty until it is proved by the prosecution. We are departing from that. Every time the Minister comes into this House, we depart from that principle. I want to make my protest, eventhough I may be one crying in the wilderness.

I have not very strong views on the matter, but if the Deputy is making a protest I will resist it because when he contemplates the effect of carrying the amendment it is somewhat different. Is it desirable that the directors of a company charged with an offence under the Bill who have dissociated themselves from the Order which has led to the proceedings should be given no alternative except to resign from the board or make themselves liable to imprisonment?

I would have an injunction against them in ten minutes and the prosecution hopping down to the mouldy atmosphere of the District Court and a 40/- fine.

Personally, I have no strong views on the amendment.

My strong view is in regard to the principle. I want to see the maintenance in full force of the principle that a person is not to be found guilty of an offence until it is proved against him by the prosecution or the State. That is a fundamental principle of our criminal law.

Will the Deputy allow it to stand over and we will consider it with the other matter?

Amendment, by leave, withdrawn.

I move amendment No. 44:—

In sub-section (2), paragraph (c), page 4, lines 47 and 48, to delete "a director" and substitute "the secretary."

This is to provide against the danger that a disgruntled secretary may embarrass a company by entering a plea of guilty without the authority of the majority of the directors.

I was going to propose that in paragraph (c) of sub-section (2) there should be a proviso that it should be done under the company's seal which, I think, would involve the effective assent of the board.

I will look into that. I imagine the secretary could not do it except on the expressed authority of the board.

Certainly he could not do it under the seal.

The intention was that one individual could not plead guilty on behalf of the whole company just because he had had a row with the directors, that the board, acting through its official, should do so. If necessary, the authority could be substantiated by the seal of the company. I will look into that.

Amendment put and agreed to.
Question proposed: "That the section, as amended, stand part of the Bill."

Will the Minister tell me under what procedure he will bring a company up to Green Street and prosecute them? Is it not nonsense?

I imagine the procedure will be that a number of legal gentlemen will be appearing on their behalf. I am sure they will be adequately represented.

In practice, how can you prosecute a limited liability company?

It can be done all right.

How would you arraign them?

I am sure it has been settled.

I have not very strong feelings on this as I do not believe it will be ever put into operation.

It will only happen when there is persistent repetition or defiance of the law.

The Minister does not know Green Street. There are 12 men on a jury and one of them is sufficient to secure that the companywill not be convicted. It would be a queer thing if you could not get one man not to convict. I suggest this is merely a facade. It is no use and it would be better to drop it. I do not care whether the Minister drops it or whether he does not. I am interested in the principle. That may help the Minister to make up his mind.

Section 12, as amended, put and agreed to.
Question proposed: "That Section 13 stand part of the Bill."

What has the Minister in mind as between the procedure envisaged in paragraph (a) and paragraph (b)? Who is to determine whether proceedings are to be brought by way of summary jurisdiction or by way of indictment? It appears possible to proceed on either procedure for the sake of a conviction. In one case the penalty is limited to 12 months' imprisonment and in the other case to ten years' penal servitude.

I presume the decision is made by the Attorney-General. Frankly, I do not know who makes the decision but I will inquire. The Minister is empowered to institute proceedings in the District Court. I take it he has to be specifically empowered to do that.

As a gesture I suggest we should delete paragraph (b) forthwith. Surely it is fantastic to envisage a penalty of ten years' penal servitude in connection with a measure of this kind. Is there any Deputy who can mention any specific offence that could be committed in connection with this legislation for which a citizen of this State should be put behind bars in Maryborough Jail for ten years?

Ask Deputy Norton that.

The Lord Mayor of Cork says Maryborough and ten years in jail. He is a nice representative of the commercial community of Cork!

Question put and agreed to.
Question proposed: "That Section 14 stand part of the Bill."

What is the meaning of sub-section (2)?

The Petty Sessions Act provides a limited period of six months and that is extended here to 12 months.

We had to make a similar provision in other Bills.

Notably in the tillage regulations against the farmers.

Question put and agreed to.

I move amendment No. 45:—

In page 5, line 46, to delete "affect the validity of" and substitute "apply to".

This is merely a drafting amendment and I do not think that it is necessary to deal with it at any length.

This is to enable statutory companies to indulge in restrictive practices.

What exactly does it mean?

Statutory companies can indulge in restrictive practices.

It does mean that.

Is not that what it is meant to mean? It may be proper to do it.

I do not want to be captious but what does it mean?

It is not a question of the validity of anything done by statutory companies. We want to provide that the Act cannot be used against statutory companies which are operating certain practices, even though they might be regarded as restrictive practices, that have been authorised by legislation. In other words, we have already taken a decision that these practices are in the public interest already and therefore they should not come within the scope of this measure.

Statutory companies are exempt from the operation of this Act.


They can indulge in restrictive practices. Bord na Móna, for instance, could refuse to supply certain selected people.

No, it can only do what it is empowered to do by Statute.

Amendment put and agreed to.
Section 15, as amended, put and agreed to.
Sections 16 and 17 put and agreed to.
Amendment No. 46 not moved.

I move amendment No. 47:—

In paragraph 1, sub-paragraph (1), line 5, after "Minister" to add the following:—

"and in making such appointments the Minister shall take steps to ensure that not less than half of the number of persons appointed (exclusive of the chairman) shall be representative of the interests of consumers."

This amendment is very clear as to what we intend. In so far as the whole purpose of the Bill appears to be to protect the consumer, the consumer should be afforded adequate representation on the commission. In the first paragraph of the Schedule it says:—

"The permanent members of the commission shall consist of a chairman and not less than two and not more than four other members."

In appointing a chairman, the Minister, I take it, will have regard to appointing the type of person who will, as far as possible, be representative of all the citizens in our community and to that extent he will have due regard to the interests of the consumer. There will also be representatives, presumably, of the manufacturing and distributive interests. It seems essential that the consumers' interests on thecommission should be the strongest since the purpose of the Bill is to protect the consumers. All the activities of our industrial and distributive system are designed to meet and fulfil the needs of the consumer, and it is for the protection of the consumer ultimately that we are trying to provide fair trading practices, with all due respect to what Deputy Dillon said about protecting the interests of the manufacturers.

Quite clearly the Minister should recognise that in appointing the personnel of this commission we should not seek a balance as between manufacturing and distributing elements on the one hand and the trade unions on the other but rather we should weight the commission on behalf of the consumer.

I am not contemplating a commission composed of representatives in the sense in which the Deputy is using the word—some selected because they can be regarded as representative of certain interests and others because they can be regarded as representative of the opposite interests. This will be a commission of three persons, any one of whom may, in fact, preside at an inquiry by himself. I did promise to reconsider the desirability of that provision in view of the representations made here in the early stages of the discussion.

This will be a commission of persons each one of whom will have definite duties to perform and can perform them in that competent manner in which the commission as a whole will be expected to act. I do not disagree with the Deputy's view that the commission is to be regarded as a commission representative of the consumers' interest in the sense that the consumers' interest is the public interest, and I think the commission as a whole should be regarded as having the particular duty of protecting the consumers' and the public interest in relation to trade practices. I think the commission should be such that any one member can be regarded as being equivalent to another and can discharge any functions that another can discharge and not be limited solely tothe task of representing a particular viewpoint.

It seems to me the Minister has to make a choice. If he wants a commission composed of members each one of whom will be capable of discharging the duties of chairman in respect of various aspects of the inquiry, it will be something like the present prices body. Will it be largely a commission composed of members of the legal profession?

Members of the legal profession could represent the consumers' interests, too.

If he goes outside that, we know from practice and experience that in seeking the members of his commission he will have to have regard to the background of the persons he will consider most suitable. He cannot simply pick them out of thin air and, once we get into the ordinary walks of life, we come up against individuals who have a direct interest in such activities as manufacturing or distribution or in consumption—in other words, people with a predilection towards one or the other—and there is no use trying to avoid that.

I would prefer having persons appointed to that commission because they did represent certain interests and had strong views than try to get persons who were completely neutral and because of that fact had no opinion at all or, what is even worse, had such strong, fixed opinions that they were worse than direct representatives of the particular interests. I would prefer to have the person selected by the Minister with a knowledge of his background and an acceptance of the fact that if you appoint "John Murphy" he will be generally regarded as speaking for the manufacturers or the distributors, or if "Michael Doyle" is going on he is there to speak for the consumers. In that way I believe you would have a much more effective organisation. Furthermore, I do not see why a member of the commission representing the manufacturers' or consumers' interests should not equally be able to discharge the duties of chairman asare members of the legal profession or of the judiciary.

They will all be there to represent the consumers' interests.

All I am trying to ensure is that the commission we are about to set up under the Act we are proposing to pass is reconciled in its character with the purpose of the Bill and that this commission will represent overwhelmingly the interests of the consumer. I particularly stress that because of Deputy Dillon's earlier remark in regard to the danger of a conspiracy between the distributors and manufacturers and to ensure that they will not get away with anything.

The commission is our sheet anchor and I am anxious that that commission will act on behalf of the consumer. The only way of doing that within the limits of the authority given to the Minister who appoints the personnel is to ensure that he will be guided in his selection of persons so that at least half of the members will represent the consumer.

Supposing we accept the Deputy's amendment and put it in the Bill, whom would he regard as being excluded by reason of it?

I do not quite follow.

Does it mean anything? Cannot any Minister pick certain individuals and say they are representative of the consumer? People will criticise his judgment. His job is to be able to answer that criticism and it is the knowledge that he will be criticised which will induce him to make the best selection. But there is nothing to prevent him from saying, no matter whom he picks, that they are representative of the consumer. A statutory provision of this kind means nothing.

Except to this extent, that there is such a thing as public opinion and if the Minister, in public before this House, says that a certain person represents the consumer interest and it is generally known from the activities of that individual that, in fact, he does not, but that he representscontrary interests, the Minister will soon find himself in difficulty, but worse still, the commission might break down.

That is precisely the point. It is the personnel of the whole commission that the people will look at and the Minister will have to defend its suitability for the job it is to do.

While the Minister has an interest in selecting persons who would be competent for the work, he should also be under the obligation of saying to the public: "I am taking the responsibility of saying that certain persons appointed to the commission do, in my opinion, represent the consumer interest and I am prepared to accept responsibility to that extent." Again it is the old question we had in regard to control of prices. The personnel does not matter; it is the amount of confidence the public has in it and this commission could break down on its first case. I think the Minister should take on himself the responsibility for saying: "I am going to appoint a commission which is weighted in favour of the consumer."

That is so. It will be entirely representative of consumers.

Would the Minister consider the practice of the investigating committees of the Congress of the U.S.A. in which there is attached to the committees a council whose duty it is to check up the relevant facts? Would the Minister consider it desirable in connection with this commission to attach to it a consumers' counsellor whose duty it would be to press on the commission the consumer's interests as opposed to the interests of any of the other parties appearing before the commission?

I think it would be a dangerous device in this instance.

You cannot have people with a sort of roving authority going around industry and trade looking for objectionable practices and using their authority to intimidate traders.

No. I mean only in the case where the commission had proceeded to the investigation of a particular restrictive practice. Before them would come the trade union to make their representations, the distributor's representatives and the manufacturer's representatives, but there is nobody to go and make the case for the consumer or rebut on behalf of the consumer the case made by the manufacturers, the trade unions or the distributors. The Minister says he hopes the members of the commission will do that themselves but the members of the commission have not got the means of preparing the case. I suggest that the members of the commission, while being expected to have a bias in favour of the consumer, cannot be expected to make out the consumers' case and that if the commission is to function efficiently there ought to be somebody there whose duty it is to make the case from the point of view of the consumer. This commission, having heard the respective cases of the consumers, the manufacturers, the trade unions and the distributive trades, admittedly with a bias towards the consumer, will seek to give a decision that will do substantial justice to all. But I cannot see how they can effectively function unless there is somebody there to press the consumer's point of view, as there will be and ought to be persons there present to press the trade union point of view, the trade point of view and the manufacturer's point of view, more especially when it is not at all impossible that the manufacturers, the traders and the trade unions will all be on the one word with a carefully agreed case to put forward.

I do not contemplate a commission that is impartial in the sense that a judge in the courts is impartial. I want a commission that is prejudiced against restrictive trade practices, that will approach every one of them in that spirit and consent to them or tolerate them only to the extent that they are satisfied, on balance, that the public interest is served by them. Therefore the commission itself will have the object of the abolition of restriction in competition and in conducting these inquirieswill have to fulfil that function of arguing against them and only allowing people who are urging the retention of certain restrictions to beat down their arguments by weight of superior argument.

I think the Minister has enunciated a very dangerous doctrine, that a tribunal which is set up by law should start off with a bias.

It is not a judicial tribunal.

Nor did I ask for a judicial tribunal but I think it should be a tribunal that would give fair play.

It does nothing. The only thing it can do is to report to the Minister.

But reports to the Minister that will have weight. The tribunal must have weight otherwise it is no use. If it acts as a one-sided commission with that outlook then its conclusions are bound to be one-sided also. I am in favour of some way of getting rid of restrictive trade practices. At the same time, I do not think you achieve that purpose by setting up a tribunal that will cause suspicion. I say from experience of these commissions that a decent citizen who is doing what he is allowed legally to do at the moment, has fired at him the most impudent questions from people from whom he expects to get fair play.

I was arguing against the points raised by Deputy Larkin. The interests of the consumer will be the job of the whole commission and I would not like to imply otherwise by any such form of words as is suggested here.

I still feel that the consumers' interests should be represented in a definite way. I am thinking now of past experience in regard to the setting up of certain bodies of this kind. As is now suggested, the appointments were left to the discretion of the Minister. I had no objection to the appointments; those people have done their job well but they havenot been accepted in the public mind in the way that was intended. That is why I say you can put persons on to this commission that I personally regard as being exceptional and outstanding from the point of view of performing their duties and yet they will not inspire public confidence. I move to report progress.

Progress reported.
Committee to sit again.