I must confess, as a member of the Companies Bill Committee, where we were promised a measure to amend the 1916 Business Names Act, that I am profoundly disappointed with this Bill. It is, I regret to say, nothing at all in the nature of a real measure to meet the circumstances of the case. Everyone who has any knowledge of the business community and trading with that community knows that the 1916 Act is in use more for its disuse than for compliance with its provisions. As a member of the Companies Bill Committee, I hoped, when we were promised a new Bill, that some serious effort would have been made to provide a Bill to meet modern conditions. I am sorry that that has not been done. This Bill is nothing but a pale, lukewarm, colourless rehash of the 1916 Act—rehashed, I might say, and I regret to say it about the Minister, for whom I have a personal regard, in a lazy fashion.
Let us look at Section 17, for example. It is common practice in these modern days whenever administrative arrangements are to be made under a Bill that they are referred to either as orders or as regulations but when this Bill was being drafted, no effort was made to make the appropriate modern amendment. The word "rules", now entirely out of date, was copied in from the 1916 Act without even the mind of the Minister being applied to the fact that that was used some 45 years ago and is no longer operative.
I agree with the Minister on one thing about this Bill, that is, that it is desirable that it should go to the Companies Bill in Committee where, I hope, notwithstanding the many other calls on the time of that committee, some effort will be made to deal with the things that should have been dealt with by the Minister and the Department of Industry and Commerce before bringing this Bill to the House.
This is a technical Bill. In connection with a technical Bill of this nature, the Minister must be seriously chided for not issuing a White Paper or explanatory memorandum. Possibly a paper was not issued because the explanations would have shown very clearly how the Minister and his Department had fallen down in the production they have brought to the House.
Where the Bill has provided changes, it is impossible to understand the reasoning and the basis behind them. There is a change in the definition of "business name" but that does not seem to have been produced with any very great care. The Minister is a lawyer—a lawyer of repute, let me say—and he knows very well that one of the things in relation to the construction of a statute is that where you have two things that should be the same and they are different, the court is bound to endeavour to see what the intention behind the difference is, to get their meaning. "Business name" is included and is defined here as being the name or style under which any business is carried on. Yet, when we go down to the definition of "firm", we find that where a firm carries on a business, the definition of it is restricted to carrying on a business for profit. Why is "profit" left out in one case and included in the other? It seems clear, in that respect, for example, that an explanatory memorandum was something to which Deputies were entitled to be furnished, giving a technical explanation.
Apparently, a single person can carry on a business for any reason— for loss—and he need not register but if two people come together, it is necessary to prove that they have come together for profit because the word "firm" requires proof of the profit motive under the definition in Section 2.
The real trouble in relation to business names—and everybody knows it —is that nothing is done when a business name is not registered. Any solicitor, any debt-collecting agency, will tell the Minister that day after day they meet cases where there is apparently a firm carrying on business under the name, say, "Richardsons" and if a summons is issued against the name "Richardsons", it then transpires that it is not Richardson who is carrying it on at all. You go to the business names register in the Castle. You inspect that register and you find that no one is registered there under the 1916 Act as carrying on business under that name. You draw the attention of the Office to that fact. They send out a note to Richardsons to register and nothing happens for two or three months. You go to the Office again and they send out another memorandum, but nothing is done. The person concerned does not register, and no effort appears to be made by the people in charge of business names to force registration.
I would have been disposed to think that the reason why nothing was done by the people in charge of that Office was that they had not got the power to see that registration was effected, to ensure registration. In relation to that aspect, the Companies Bill Committee were anxious to ensure that something would be done, but, so far as I can trace, anyway, there is no change in this Bill that will make it any easier for the trading community to know with whom they are dealing, from the existing position under the 1916 Act.
I am not very clear either as to whose obligation it is to make the registration of the business name. In Section 11 of the 1916 Act, a clear obligation was placed upon the Registrar. It provided:
On receiving any statement or statutory declaration made in pursuance of this Act the Registrar shall cause the same to be filed, and he shall send by post or delivery a certificate of the registration thereof...
The Registrar got the statement, issued a certificate and filed the appropriate name. Under Section 9 of this Bill, the Minister may require any person to furnish particulars, and under Section 14, the Minister may refuse to permit registration but, so far as I can see, the obligation included in Section 11 of the original Act does not seem to have been brought into this Bill in the same clear way.
I do not know whether it is better that a specific obligation should be placed upon the Minister and let him delegate his powers to a Registrar, or whether the Registrar should have the function that is given to the Minister in Section 14 but, as I shall be arguing on an amendment I have tabled to the Companies Bill, I think it is wrong to have responsibility split in the way it has been split here.
At the same time, I may say that having perhaps been harsh in my criticism of the mistakes in this Bill, it is right that I should also add that the amendments made in Sections 6 and 7 by which uniformity is achieved of one month as the period within which certain things should be done are an improvement on the 1916 Act. I also think the provision in subsection (3) of Section 5 is an improvement. Fines on default have been increased but, as I say, there appears to be little use in increasing them if no real effort is made in relation to enforcement. I am afraid that our whole attitude in relation to enforcement of provisions like this, and in relation to what I might call fraudulent trading generally, needs to be overhauled. I do not mean fraudulent trading in the bankruptcy or liquidation sense; I mean the prevention of fraud.
There is a general impression in officialdom—and I am including not merely civil servants in the Department of Industry and Commerce but also members of the Garda—that the prevention of fraud is not the correct approach, that it is the detection of fraud when it has been committed. I know of a case within the past 12 months where all the information requisite to deal with a person who was undoubtedly endeavouring to defraud people in Dublin was placed in the hands of the appropriate authorities. Nothing whatever was done because no specific complaint had been made by any person who had been defrauded. The person concerned was clearly a fake and quite undesirable. Obviously, he was trying to take business people in Dublin in as suckers. In fact, subsequently he did take in some people.
The attitude of officialdom—and, as I said, I am combining the officials of the Minister's Department and the Garda who were aware of all the facts —was that it was unnecessary for them to do anything because there had been no specific complaint that anyone had been specifically defrauded, instead of welcoming the fact that someone who was aware of the information had passed that information on and in consequence it would be possible to prevent the fraud. As I say, nothing was done. In fact, the person concerned has since been ejected from Nigeria as an undesirable immigrant, and it has transpired in another way that he had already been convicted on fraud charges elsewhere.
We have to change our whole approach to this type of Bill. We have to ensure that the purpose of a Bill of this sort is to permit easy trading to the genuine person who wants to carry on a business, and to ensure that where a person does not comply, and refuses to comply after his attention has been brought to his non-compliance, such a person will be brought to book severely. To think that two or three reminders to persons who registered under the 1916 Act is enough when a case of non-registration is brought to notice is not the right approach. If we are introducing this Bill for that purpose only, we might just as well not be wasting our time.
The only real difference in this Bill is the definition of the business name that was added and the fact that newspapers are being included. Newspapers were already covered in a slightly different way, but an adequate way, by the Defamation Act, 1961, and it is lamentable that, when the Bill which was promised in the Committee has been introduced, some little imagination, some greater efficiency and some greater implementation other than re-enacting the 1916 Act was not thought of so as to ensure that the fraudulent case would be caught while permitting the genuine case to carry on business in the ordinary way.
