I move amendment No. 1:—
In page 2, Section 2, sub-section (2), before "Schedule" to insert "First".
This is only a drafting amendment.
Restrictive Trade Practices Bill, 1952— Final Stages.
Amendment agreed to.
I move amendment No. 2:—
In page 2, between lines 15 and 16, to insert a new section as follows:—
For the guidance of the commission a list of unfair trade practices is set out in the Second Schedule. The Schedule shall not be regarded as exhaustive and shall not limit the commission in the exercise of their functions.
This will be discussed with amendment No. 21, which relates to the proposal to put a second schedule in the Bill. The proposed schedule contains a list of unfair trade practices which has been prepared on the basis of the amendment which Deputy Costello moved on the Committee Stage. The draftsmen have followed the order in his amendment and merely adjusted the wording in accordance with the normal drafting practice.
I am not opposing the amendment, but I would like to put on record that I hope the commission will not take this as an indication that they are at liberty completely to ignore the Second Schedule.
No, no.
It could be so read. I realise the difficulty of drafting, and I am not opposing it, but I think it ought to be marked that the Second Schedule has a definite purpose and they ought to adhere to it as far as is practicable, and that this amendment cannot be used for the purpose of ignoring the new Schedule.
The intention is to direct the commission.
I understand. I am not opposed to it.
Amendment agreed to.
I move amendment No. 3:—
In page 2, to delete Section 3, lines 16 to 21, and substitute the following—
(1) As respects any kind of goods the commission may, on their owninitiative or at the request of an association representing persons engaged in the supply and distribution of such goods, prepare and publish rules representing, in the opinion of the commission, fair trading conditions with regard to the supply and distribution of such goods and, on their own initiative or at the request of an association representing persons rendering, in the course of carrying on any trade or business, any services affecting such supply or distribution, may also prepare and publish rules representing, in the opinion of the commission, fair trading conditions with regard to the rendering of such services.
(2) Rules under this section are referred to in this Act as fair trading rules.
The redrafting of this section arises out of the desire to effect two changes in it. One is to meet a point raised by Deputy Dockrell in Committee, namely, that the commission should have a discretion as to whether they would prepare fair trading rules or not at the request of an association or body of persons. As the Bill was framed, the House will remember, they were required to prepare these rules if so requested. The second change is to carry through here a consequential amendment arising out of the decision to extend the scope of the Bill to include services associated with the distribution of goods.
On this amendment, substituting a new Section 3 for the Section 3 already in the Bill, I want to reiterate a view I mentioned on the Second Stage, that Section 3 should not be here at all. As I understood the Bill, the purpose was to put an end to restrictive trade practices. Amendment No. 3, which provides us with a new Section 3, actually requires the commission to become parties to the creation of a code of rules which will enjoy the implied benediction of the Legislature. Any system of restrictive rules is in itself bad, and the onus probandiof the need for rules of this character must always remain on thosewho operate them. I seriously apprehend that, as a result of this section, instead of our having additional safeguards against restrictive practices, we will have a situation arising in which certain very evil restrictive practices will secure sanction.
I want to direct the attention of the House to the circumstances in which that can, and almost surely will, arise. The vested interests concerned are organised and know what they want. Those who stand in danger of exploitation are not organised and very frequently are wholly untrained to foresee the inevitable consequences of the adoption of a restrictive trade practice. I envisage a situation arising in which a manufacturers' group, the trades union concerned and the distributors interested jointly agree that, if they are all to have the standard that they at present enjoy out of this protected industry, they must combine so that all manufacturers, all distributors and all workers in this protected industry will agree to share the spoils and the only way effectively to do that is to stop competition between themselves. They therefore prepare a draft fair rules for that particular trade and they come before the commission with this case: "Everybody concerned in this trade recommends these regulations as being in the best interests of all concerned."
I know the Minister says it is the duty of the commission to constitute itself the protector of the consumer, but suppose these three parties say to the commission: "We are bound to advise you that unless a code of this character is introduced, this whole industry may go smash, because the market is limited here and if there is a competition which evokes a supply which exceeds the domestic demand, it will become impossible to maintain labour standards and a reasonable margin of profit to the industry, with the net result that every unit in the industry will collapse and it will not be a case of the most efficient surviving." I know from experience that if a trades union and an industrialist jointly come, even to the Government itself, and say: "If you will not provide the quota we want or if you will not jack the tariff up to 75 or 90 percent., then the industry will go bang", such a combination presents an almost irresistible influence to get what they want.
If such a combination as that goes to this commission with that kind of case and they are confronted with the ultimatum: "Either you declare under Section 3 that this draft code of rules that we submit on behalf of distributors, producers and employees is fair to the consumer, or we propose to make it known that the collapse of this industry, the unemployment resulting therein and the necessity to import the product that we are producing, is solely and entirely due to the irresponsible conduct of this commission which, all parties notwithstanding, has refused to give us the protection that Section 3 will give us," does the Minister seriously think that the commission will ever take the responsibility of refusing them a code that all parties to the trade or industry combined to say is fair? The trades union make the case: "We are the consumers; we represent the working man; our members are not only engaged in this trade but in a thousand other trades and if anyone were interested we would be interested in keeping costs down." Do you imagine that this commission can ever find itself in a position of strength to reply: "That does not matter; speaking on behalf of that amorphous body, the consumer, we cannot consent to such a code of regulation," the prospect being that they will get no thanks from anybody for their effort to protect the consumer, but run the risk of becoming a public cockshot, if the entrepreneursrefuse to continue operating their activities unless they enjoy the improper protection afforded to them by a code of restrictive regulations which they invite the commission to approve?
I think you are asking the impossible of a body of this kind in believing they can resist pressure of that kind, and what I apprehend is that, whereas at present, no matter how powerful the influence of such a trinity of interests as I have described may be, they have nowhere to go to get antecedent approval of their activities, and haveto chance their arm, in the knowledge that, if they become too arrogant in their activities, somebody may move the Department to proceed against them, hereafter they can chance their arm as far as they can possibly go before the commission. Under Section 3 they can afford to retreat a good deal from their first claim before the commission, but they can go much farther than they would dare to go in the ordinary course of conduct, and if they can bamboozle, intimidate, persuade or in any other way get the approbation of the commission for their proposition, no matter how extravagant it appears thereafter to be in practice, they have always the alibi that they can say to the Minister. "Do not ask us; we had all this before the commission, before we put this code of fair trading regulations into operation and they approved it. If it looks to you extravagant in operation and unjust in its impact on the consumer, do not blame us. We asked the commission to investigate it and, if they saw anything in our proposal which they wished to take out, they were free to take it out. They took nothing out, and that is the code we are operating, and if you want to administer censure on anybody, let it be on the fair trading commission."
What does the consumer get out of Section 3? How is the consumer to benefit by Section 3? Is this Bill not designed for the consumer? The only persons who can possibly get the benefit of Section 3 are the very people whom this Bill is designed to control. This is a Restrictive Trade Practices Bill. What potential victim of a restrictive trade practice is going to benefit by Section 3? The present position is that, if anybody is injured by a restrictive trade practice, he can have recourse to the Department and seek investigation.
If this Bill passed without Section 3, there is this commission to which he can go, make his case and have the practice investigated, but what conceivable advantage is accorded to him by Section 3? The only person who can get benefit under it is the potential restrictionist. I think it is the queerest position we seem to have manoeuvredourselves into, that, having set out with the purpose of putting an end to restrictive trade practices, we are going to establish by Section 3 a citadel into which the restrictionist can safely retreat and thereafter bid defiance to all comers, and, if they object to his activities, refer them to the commission.
I strongly urge the Minister to content himself with deleting the section from the Bill altogether and leave the situation then so that anybody could operate whatever practice he thought right and equable, on the understanding that, if any consumer wished to make a case against it, he could complain to the Minister, or the Minister could himself take the initiative and direct the commission to look into it. Would the Bill not be a much better Bill if Section 3 were removed altogether, and there was no possible citadel for the restrictionist in bad faith to defend himself from, as I think there will be if the section is left in?
I am afraid I find myself in the position of having to disagree with my friend and colleague in his views on Section 3. It depends on what viewpoint one takes with regard to the general body of the commercial community in this country. Under this section, the commission may prepare and publish rules. I do not see why the commission preparing and publishing rules at the request of various trades is going to be in any way against the interests of the consumer. That fair trading commission will be set up with a considerable bias in favour of the consumer and the idea that it will necessarily lean on the side of the industrialist, the businessman or the trade union coming before it is one to which I cannot subscribe.
In any case, as I pleaded on the Committee Stage, there is a very large number of trade associations of various types and kinds in the country whose activities, in the opinion of the trade, are absolutely necessary for the proper carrying on of the particular trade. These associations must be placed in the position that they can associate legally for activities which they believeto be in the interests of the trade generally and not necessarily in any way against the interests of the consumer. They must be placed in the position of knowing whether they are acting legally or illegally and anything else would lead to the most chaotic conditions in industry generally. I am personally aware of any number of associations which will send in their rules and regulations to the commission and ask how they stand with regard to them. They do not want to break the law and any situation in which Dáil Éireann passed a Bill which purported, in effect, to find large numbers of people engaged in commerce guilty before they had an opportunity to set their house in order is a situation which we should be very sorry to see arise.
I personally am in favour of this section. I feel that any taking away of these powers from the commission will result in commercial chaos of a type which we would be very sorry to see in this country. I should like the Minister to explain just what he means by "any services affecting supply or distribution". I think I am correct in saying that the second part of Section 3 is the first introduction into the Bill of the principle of "services affecting supply or distribution" and I should be glad if the Minister would enlarge somewhat on that and explain what he has in mind by the use of that phrase.
The case Deputy Dillon is making is based entirely upon the assumption that the Fair Trading Commission may be bamboozled or misled. That may happen, but I think we will be able to select personnel for the commission who will not be easily bamboozled or misled but who will come conscientiously to this job, having regard to the directives given them, and with no other interest except to ensure that the public are protected.
Assuming that we have the right type of commission, is it not desirable that there should be some means by which the rules necessary for the conducting of some particular trade should be prepared as fair trading rules without the people concerned being arraigned asrestrictionists under a later section of the Bill and compulsory Orders made to restrain them? I think also the Deputy is not adverting to the fact that those who come voluntarily to get fair trading rules made for their trade are, of course, putting themselves in the position that if they do not keep the rules which the commission lay down on their application then, without any further inquiry or procedure, the commission may proceed to report to the Minister and the Minister may proceed to make an Order which can be enacted by the Dáil and made a compulsory Order as far as that trade is concerned.
There are various ways in which the whole problem of restrictive trade practices can be approached. There is the approach suggested by Deputy McGilligan—that the legislation should prohibit all practices which are restrictive of competition in trade and then permit of the drafting of rules by this commission which would release people engaged in particular trades from that omnibus prohibition. On the other hand, there was the suggestion that we should rely entirely on the courts declaring certain things to be illegal and letting a body of case law be built up over the years by which traders could guide their conduct. We have tried to adopt a half-way course. We take power to make laws which will be mandatory and enforceable through the courts, but we also want to give trades which claim that they need rules for their proper conduct and which desire that these rules should not be contrary to the public interest an opportunity of having them vetted by a competent authority and sanctioned by them—it being understood that if the rules so sanctioned, while not initially enforceable in law, are not observed in the trade they can be given the force of law by a subsequent procedure.
Deputy Dockrell is not quite right in saying that this is the first reference to services in the Bill. We have amended the Bill in Committee by the insertion of sub-section (2) of Section 6 and thereby given the commission power to inquire into services affecting the supply or distribution ofgoods and the circumstances of the trade under investigation by them. That amendment to Section 6 has required consequential amendments to various sections of the Bill. One is in sub-section (3). If the commission is to be empowered to investigate the application of services to the distribution of goods then they should have power to deal with the problem if it arose in relation to the making of fair trading rules. The best example that I can give now is the availability of hire purchase facilities in respect of any particular class of goods.
Would the words "any services affecting such supply or distribution" cover a trade union practice?
No, the Bill does not relate to trade union practices at all. It relates only to services affecting the supply or the distribution of goods.
Surely that could be——
Could it not be argued like this? Suppose there was a practice whereby a trade union required an employer—as I think it is the practice in certain trades——
Perhaps I am wrong there. If a trade union made an agreement with an employer—as some trade unions have—to make effective a restrictive trade practice, then that practice of the trade union would be subject to investigation under this Bill. But a trade union's imposing restrictions on the employment of labour—which is the purpose for which a trade union exists—would not thereby be subject to investigation.
Take the case of what is known as "feather bedding" where the employer is required to employ one staff to operate machinery and another staff to stand idly by and watch the machinery operate.
Restrictive practices which have for their purpose any of the aims which are now set out in the new Schedule are the type of restrictive practice at which this Bill is aimed. I have in mind a case for the purpose of illustrating its application to tradeunions. Take, for example, a trade where the employers agreed amongst themselves to maintain certain prices and to operate certain restrictions and where the union then agreed with the employers that its members would work only for the employers who observed those rules. In that case the union would be as liable to be brought before the fair trading commission as the employers.
Where certain prices arose——
The Chair would remind Deputies that we are on the Report Stage of the Bill and that Deputies may now speak only once to an amendment.
We are asking questions for the purpose of clarification.
Take, for example, prices which arise from trade union restrictions or which are based very largely on them. Surely, in such a situation, trade union conditions, and so forth, would be bound to be discussed? It is very difficult to get at the truth of the matter.
Definitely we intend to confine the scope of the Fair Trade Commission to the supply and distribution of goods and not to the supply or utilisation of labour.
In this proposed new sub-section the Minister seems to be taking away the mandatory character of the original section. What is the reason for that?
I agreed to do it in Committee. There was an amendment by Deputy Dockrell to that effect which, after discussion, I agreed to accept in principle.
I just had not heard that.
Further to the point made by Deputy Dillon with regard to "feather bedding", would the Minister not agree that paragraph (d) of the proposed Second Schedulemight come into force, i.e. "unjustly enhance the price of goods"?
We are dealing here with matters of trade. The commission is confined to matters affecting the supply and distribution of goods. In so far as the Bill is extended to cover services, it relates to services carried on as a trade. That is the distinction I make with services of another kind—the services with which a trade union is concerned, the services given by a worker to his employer.
Amendment put and agreed to.
I move amendment No. 4:—
In page 2, Section 6 (1), line 34, to delete the word "one" and substitute the word "two".
On the Committee Stage of this Bill we pressed upon the Minister that he should accept the amendment to the effect that the whole inquiry should be held by all the members of the commission. The Minister resisted that claim at the time. We now suggest a halfway house—that at least two members of the commission should hold the inquiry. The analogy I want to put rather strongly is the analogy which is in the Land Commission. Though there are four lay commissioners, two of them have always to deal with an important inquiry in the work of the Land Commission.
I think it is essential that, in the work of this commission, we get some stereotyped procedure and some uniformity of practice. You are going to get that far better by having a commission working with more than one member holding the inquiry. Apart from that, all of us who have any experience in dealing with this type of body, know that no matter how good he may be otherwise, a single individual is inclined, when making an inquiry, to look at it from the point of view of the individual. It would be much better, it would strengthen the commission very much and strengthen the acceptance of the commission by the public, if at least two members did, in fact, deal with an inquiry.
I appreciate, of course, that the whole commission, as such, must report, but quite clearly that report is going to be coloured and judged almost entirely by the views of the particular member of the commission who makes the inquiry. I think it would be far better if the inquiry were always made by at least two members of the commission rather than by one. I think that the Minister's purpose in drafting the section in this form originally was that he wanted to provide that the whole work of the commission would not be held up if one of the members happened to be sick. To increase the number from one to two is not going to prevent the work going ahead, and is undoubtedly going to lead to much more uniformity of practice.
I considered every suggestion that was made in the Committee Stage of the discussion, and I accepted them wherever I thought it was desirable to do so; but this was one amendment which I found I could not accept. I think that, to some extent, the suggestion was made originally on the assumption that the commission was to be composed of persons representative of particular interests, and that it was undesirable that one person representing a particular interest should conduct the inquiry. That is not what is intended. It is intended that the members of the commission, three in number, will have equal qualifications, and that each will be competent to conduct an inquiry on his own if it is considered desirable in suitable cases that such an arrangement should be followed.
The intention is not to provide against the possibility of a member being sick because that could be covered by a particular type of provision, but rather to permit of the possibility of more than one inquiry being in progress at the same time.
One of the factors which I had to take into account in considering the framework of this Bill and one of the criticisms which was made of the measure, was that it would be slow in producing results. I thought that it would expedite matters if, in suitablecases, a single member of the commission could conduct the inquiry. I do not think any problem arises about maintaining uniformity of practice because, of course, the report which the commission will make to the Minister will be the report of the whole commission.
Based entirely on the report of that single member of the commission?
Not necessarily. He will not make a report in that sense. He will conduct the inquiry. He will record the information which is forthcoming at the inquiry and, presumably, a typescript report of the whole proceedings will be available to all the members of the commission. He will be merely an investigator for the commission and not a person upon whose report the decision of the commission will be taken.
I should think that, in the early stages of the commission's work, all the cases will be of such a character that the whole commission would consider it desirable to conduct an inquiry, but that there will be suitable cases—that is cases of an uncomplicated or minor character—where it would facilitate and expedite the work of the commission to have the inquiry carried out by one member.
Deputy Sweetman referred to the example of the Land Commission. I was rather thinking of the Industrial Development Authority where, as the Deputies opposite know, specific sections of work are given to each member of the authority. In that section he has acted, and still acts, as the individual who holds the inquiry.
But he does not hold an inquiry in public such as is visualised by sub-section (3) of Section 6?
I am not sure, but, in fact, it is he who meets the people concerned on the particular issue that he is investigating; he gets all the information which he thinks that body will require, and then brings that information to his colleagues who decide on the line that should be taken.
Would the Minister agree that where an inquiry is being held in the ordinary sense of that word —an inquiry analogous to a court of inquiry—more than one member of the commission should act?
What we are doing here is, we are empowering the commission to carry through an inquiry with one or more members as they themselves think fit.
Would you agree that, in a case such as I have put, more than one member should act?
I think that, in a major case, the whole commission should sit. I am thinking now of a case where big issues were being investigated, such, for example, as the distribution of petrol, cigarettes or the distribution of any class of goods in respect of which restrictive trade practices were alleged to operate, and which had a general public interest. There will be individual cases of a much smaller character where it should be possible to have the inquiry conducted by one member.
What some of us are thinking is this, that it would probably give more force to its proceedings and to its findings if more than one member held the inquiry.
I think so.
I am more concerned with the point of view of the commission itself than anything else.
It would be a minor or a straightforward case where only one member would act.
If we are agreed on that, then there is no more to be said.
Amendment, by leave, withdrawn.
I move amendment No. 5:—
In page 3, Section 6, to add a new sub-section as follows:—
(5) Where the commission, having received a request from any person to hold an inquiry, decide not to hold such inquiry, they shall inform thatperson of the reasons for their decision.
This is to meet a point that was raised by way of amendment on the Committee Stage.
Amendment agreed to.
I move amendment No. 6:—
In page 3, Section 7, sub-section (1), paragraph (a), line 11, after "concerned" to add the following:—
"and, where appropriate, the conditions in regard to the rendering, in the course of carrying on any trade or business, of any services affecting such supply or distribution;".
This is consequential. In connection with this section, there is one matter which I should like to mention. There was an amendment by Deputy Larkin on the Committee Stage which I promised to consider. It was designed to ensure that the commission would have the right to permit the attendance of individuals or representatives of organisations at private sittings. I am satisfied, on re-reading the Bill, and have been so advised, that the amendment is not necessary because in the Schedule power is given to the commission to regulate its own procedure. The Schedule gives ample power to the commission to do what the Deputy intended.
Amendment agreed to.
I move amendment No. 7:—
In page 3, Section 7, sub-section (3), paragraph (b), line 24, after "Minister" to insert "after consultation with the commission".
This is to meet a point that was raised in Committee by Deputy Cosgrave. Any deletion from the report will be "after consultation with the commission".
Amendment agreed to.
I move amendment No. 8:—
In page 3, Section 8, sub-section (1), paragraph (b), line 41, after"goods" to insert "or of services rendered in the course of carrying on any trade or business and affecting the supply or distribution of such goods".
This is consequential.
Amendment agreed to.
The following amendments—9, 10, 11, and 12—were agreed to.
9. In page 3, Section 8, sub-section (1), paragraph (c), line 44, after "goods" to insert "or the rendering of any such services". —(An tAire Tionscail agus Tráchtála).
10. In page 3, Section 8, sub-section (1), paragraph (d), line 46, after "goods" to insert "or the rendering of any such services".— (An tAire Tionscail agus Tráchtála).
11. In page 3, Section 8, sub-section (1), paragraph (e), line 49, after "concerned" to insert "or the rendering of any such services".— (An tAire Tionscail agus Tráchtála).
12. In page 3, Section 8, sub-section (1), paragraph (f), line 52, after "goods" to insert "or the rendering of any such services".— (An tAire Tionscail agus Tráchtála).
I move amendment No. 13:—
In page 4, Section 8, to insert a new sub-section as follows:—
(5) The Minister shall comply with sub-section (4) within three months after he has received the report.
This amendment is also designed to meet a point that was raised in Committee. It obliges the Minister to comply within three months after he has received the report.
Amendment agreed to.
I move amendment No. 14:—
In page 4, Section 9, line 10, after "goods" to insert "and the rendering, in the course of any trade or business, of any services affecting such supply or distribution".
Amendment agreed to.
I move amendment No. 15:—
In page 4, Section 12, to delete sub-section (1), lines 26 to 34, and substitute the following:—
(1) Where an offence under this Act is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporated body of persons, and is proved to have been so committed with the consent or approval of, or to have been facilitated by any neglect on the part of any person being, in the case of a body corporate, a director thereof, or, in the case of an unincorporated body, a member of the committee of management or other controlling authority thereof, that person shall also be guilty of the offence.
I move amendment to amendment No. 15:—
Before "neglect" to insert "wilful".
I think there should be some positive act.
That makes it impossible to enforce. The argument is that if you put in "wilful neglect" then you do not merely have to prove the fact of neglect; you have to prove the state of mind of the individual responsible for the neglect. I am advised that the insertion of the word would in fact nullify the whole provision of the section.
Take an ordinary contract for sale. The provision always there is "except in the case of wilful default of the vendor". You do not have to prove attitude of mind. I think the word "wilful" is construed in these circumstances as being somewhat more than mere neglect—a positively stupid neglect, so to speak.
I am advised that this wording would have the effect that I have said. It would mean that a director could be as negligent as he liked and let his company engage in any number of restrictive practices and still escape the consequences of itbecause of the difficulty of proving that it was done deliberately, that it was not mere negligence but deliberate negligence, that you would require to prove that state of mind rather than the fact.
I do not think that is the legal connotation of "wilful". It is certainly not the legal connotation that I am trying to get at. I think the words "been facilitated by any neglect on the part of any person" are too wide. I was trying to imply "facilitated by any wilful neglect"—in the sense of any serious act of neglect. Perhaps the Minister would consider something on those lines before the Bill goes to the other House.
In my amendment, No. 15, I have gone a long way to meet the objection raised to the section originally. As redrafted, the onus of proof is completely on the prosecutor. There is no longer any doubt about that. That was the purpose of redrafting. I think it goes a long way to meet the point.
I know I am not strictly in order in discussing it on Report Stage as if we were in Committee. Supposing a director is not present at a meeting, supposing it was the only meeting he missed in the year 1953 and at that meeting some decision was taken, he is guilty under that section of neglect.
No.
Oh, yes.
It has to be proved that the act was committed with his consent and approval or was facilitated by his neglect.
"Or." If the Minister puts in "or neglect" it can be taken that he was neglectful in not turning up at that meeting and he can be convicted for that. That is not what is intended. I know perfectly well what the Minister has in mind, and I agree with what is in his mind, but it is not expressed in this form of words, and I do not agree with the Minister that the interpretation put upon"wilful" is an interpretation which necessitates consideration of the state of mind. I think that is the lay use of "wilful" and not the use of "wilful" as it would be used legally.
What we would like to put in would be "facilitated by the director not doing something that he should have done."
I agree. That is what I think should be in, but I do not think the form of wording is adequate as it is.
I will get them to have another look at it. That is what we mean—that he should only be liable to prosecution under this provision if he has deliberately failed to do something that it was his duty to do, in order to permit of the illegality to take place.
"Deliberate neglect"—take your own word.
That he decided not to do something that he should have done —is not that the idea?
"Conscious." The point Deputy Sweetman made was that the director neglecting to turn up to a meeting, could be held liable for the actions taken at the meeting at which he was not present and to which he might have objected if he had been present. Take the further case of correspondence. Something comes in in the correspondence and, through neglect, the individual director, whoever he may be, does not give the correspondence the care which he should give it.
That is precisely the point. What will the letter be?—"Dear Sir, Your commercial traveller has refused to supply me with goods because I am not a member of a certain association" and the director puts it in the wastepaper basket. That is the type of neglect we want to prosecute.
Supposing it was not just put in that particular way but that the complaint was not fully substantiated in the letter and the individualdirector did not think it was as serious as it was. He might be held to be liable for something for which he should not be liable.
The word "default" occurs to me.
It would meet the point if you put in the word "default".
Am I right in believing that the difference we seek to establish here is analogous to the distinction that is made between negligence in civil suits and negligence of a character which involves a criminal liability? We do not seek here to make a director liable if his negligence is only of the character which would make him liable in a civil suit but to make him liable if he is guilty of that class of negligence which would damnify him in criminal proceedings. I imagine the words "dereliction of duty" would suit.
Would not "default" do?
"Default or dereliction of duty."
We can amend the amendment by the substitution of the word "default" for the word "neglect".
Amendment to amendment No. 15, by leave, withdrawn.
The following amendment to amendment No. 15 was agreed to:—
To substitute the word "default" for the word "neglect".
Amendment No. 15, as amended, agreed to.
I move amendment No. 16:—
In page 6, Schedule, paragraph 1, sub-paragraph (3), lines 10 and 11, to delete "for the purpose of a particular inquiry" and substitute a new sentence as follows: "Not more than one temporary member may act for the purpose of a particular inquiry."
It will be recollected that there wassome objection to the proposed appointment of temporary members on the ground that the power might possibly be used to pack the commission for the purpose of a particular inquiry. I decided to go as far as I could to meet that objection. The amendment provides that not more than one temporary member may act at any time.
Amendment agreed to.
I move amendment No. 17:—
In page 6, Schedule, paragraph 3, lines 26 and 27, to delete all words from "unless authorised" to the end of the paragraph and to substitute the following:—
"act as a member during the consideration of the matter, unless the Minister, being of opinion that his interest is not such as to interfere with the impartial performance of his duties, authorises him to act".
There was a discussion about the provision in the Schedule relating to the possibility of a member being personally interested in a particular matter under inquiry and objection was taken to the provision that he should not act unless authorised by the Minister. I have redrafted the Schedule so as to make it a little tighter than it was, to meet the point raised in Committee. It provides that he will not act as a member during the consideration of the matter, unless the Minister, being of opinion that his interest is not such as to interfere with the impartial performance of his duties, authorises him to act.
Amendment agreed to.
I move amendment No. 18:—
In page 6, Schedule, paragraph 4, to delete sub-paragraph (1) and substitute the following sub-paragraphs:—
(1) The Minister may remove from office a member who has become incapable through ill-health of performing efficiently his duties as suchmember or whose removal appears to the Minister to be necessary in the interests of the effective and economical performance of the functions of the commission.
(2) Where the Minister removes a member from office he shall lay before each House of the Oireachtas a statement in writing of the reasons for such removal.
This is also to meet another point raised in Committee. The Bill as it stood gave the Minister power to remove a member from office. It was thought he should have some greater security than that, so I agreed and am now moving to insert in the Schedule this provision which is similar to that contained in the Electricity Supply Act.
Was the word "economical" used before? That seems to be new.
This amendment is taken verbatim from the Electricity Supply Act.
Amendment agreed to.
I move amendment No. 19:—
In page 7, Schedule, paragraph 8, before sub-paragraph (2) to insert a new sub-paragraph as follows:—
(2) The authorisation of an authorised officer shall indicate the matters in respect of which he may act under this paragraph.
This also provides for a point raised in Committee by Deputy Sweetman and Deputy Dillon. It provides that the authorisation given to an officer will specify the matters in respect of which he is authorised to act. He cannot be given a general authorisation except he is a general officer of the commission. Any inspector of the Department of Industry and Commerce or anyone else who is authorised by the commission to carry out an investigation must be furnished with an authorisation specifying the matters in respect of which he is authorised.
The presumption is thatonly those who ate senior and responsible officers would in fact receive a general authorisation.
In practice, inspectors of the Department.
We did envisage that certain officers might be given general authority. The object of this is to secure that such a person shall be a senior officer, while an ordinary inspecfor might be given power to act under a special authorisation.
There will be no roving commission?
No.
Amendment put and agreed to.
I move amendment No. 20:—
In page 7, Schedule, paragraph 8, sub-paragraph (2), line 42, after "hereby authorised" to add "on production of his authorisation, if so required—".
Amendment put and agreed to.
I move amendment No. 21:—
In page 8, to add a new Schedule as follows:—
SECOND SCHEDULE.
Unfair Trade Practices.
Any measures, rules, agreements or acts whether put into effect or intended to be put into effect by a person alone or in combination or agreement, express or implied, with others or through a merger, trust, cartel, monopoly or other means or device whatsoever which—
(a) have or are likely to have the effect of unreasonably limiting or restraining free and fair competition, or
(b) are in unreasonable restraint of trade, or
(c) have or are likely to have the effect of unjustly eliminating a trade competitor, or
(d) unjustly enhance the price of goods or promote unfairly theadvantage of suppliers or distributors of goods at the expense of the public, or
(e) secure or are likely to secure a substantial or complete control of the supply or distribution of goods or any class of goods unfairly or contrary to the public interest, or
(f) without just cause prohibit or restrict the supply of goods to any person or class of persons or give preference in regard to the provision of, or the placing of orders for the supply of goods, or
(g) restrict or are likely to restrict unjustly the exercise by any person of his freedom of choice as to what goods he will supply or distribute or the area in which he will supply or distribute his goods, or
(h) impose unjust or unreasonable conditions in regard to the supply or distribution of goods, or
(i) exclude or are likely to exclude without good reason new entrants to any trade or industry, or
(j) secure or are likely to secure unjustly the territorial division of markets between particular persons or classes of persons to the exclusion of others, or
(k) in any other respect operate against the public interest or are not in accordance with the principles of social justice.
This has already been discussed.
I should like to ask the Minister to define for me what are the principles of social justice.
That is a question I asked Deputy Costello, and his answer was that the Constitution contains a reference to the principles of social justice and they mean here whatever they mean in the Constitution.
They are not defined in the Constitution.
Amendment put and agreed to.
Question—"That the Bill, asamended, be received for final consideration"—put and agreed to.
Agreed to take the Final Stage now.
Question—"That the Bill do now pass"—put and agreed to.