With amendment No. 1 we can discuss amendment No. 7, which is consequential.
Committee on Finance. - Merchandise Marks (No. 2) Bill, 1969: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 2, subsection (1), lines 27 and 28, to delete ", after consultation with such interested persons (if any) as he may select,".
Amendment No. 7 provides that an order shall not be made under this section without prior consultation by the Minister with such persons as appear to him to be substantially interested in the general subject matter of the order unless, in the case of an order under subsection (11) of this section, it is, in the opinion of the Minister, necessary to make the order without such consultation. This particular amendment arises from proposals made by the Confederation of Irish Industries. They represented that consultation with interested parties should be obligatory because the principle of consultation was fundamental to the efficient operation of the legislation. I accepted the proposals provided that, in the case of amending or revoking orders, a formula can be devised rendering consultation unnecessary where I am of the opinion that consultation is not necessary.
We have no objection to these amendments. This is a move in the right direction, but it does not go far enough. I have a later amendment which will, I hope, remove the whole matter out of its present impasse. Personally, but not politically, I wish the Minister a happy time in office and success.
I do not know about the happy time. Would the Minister say what goods he has in mind here?
This covers all goods. The Confederation of Irish Industries was rather frightened at the possibility of some type of order which would prevent the marketing of some goods and it is reasonable that they should ask for consultation before the Minister makes an order. No particular goods are contemplated. In general, it is foodstuffs which will be dealt with; there will be orders relating to weight, size, count and so on.
Amendment agreed to.
With amendment No. 2 we could, perhaps, take amendments Nos. 3, 4 and 5, which are cognate.
I move amendment No. 2:
In page 2, subsection (1), line 36, to delete "weight, measure or number," and to substitute "reference to such one or more of the following, that is to say, their weight, measure and number".
During the debate on Second Reading a question arose as to whether more than one of the three forms—weight, measure and number — could be covered in the one order and the Minister at the time said that this was possible. Since then it has been decided that this would permit of an order being made covering only one form— weight, or measure, or number—and that is why these amendments have been introduced in order to remove any doubt but that weight, measure and number can be covered, if necessary, in any order made under this section.
As regards amendment No. 3 particularly we, in this party, have no objection. In fact, what the Federation of Industries desired was that the Minister would perforce have to consult with all parties interested. On contemplation, as politicians who have been here for some time, one would realise that to have a Minister subject to this as an absolute rule of law might be wrong because I am sure there are crackpots among the manufacturers as there are in this House and elsewhere. This amendment is acceptable. It does not go the whole way but we have no objection to it. I am not too worried about amendments Nos. 4 and 5 and I agree that the tidying-up mentioned by the Minister is necessary.
Amendment agreed to.
I move amendment No. 3:
In page 2, subsection (1), lines 40 and 41, to delete "weight, measure or number," and to substitute "reference to such one or more of the following, that is to say, the weight, measure and number of the goods".
Amendment agreed to.
I move amendment No. 4:
In page 3, subsection (1), lines 4 and 5, to delete "weight, measure or number," and to substitute "reference to such one or more of the following, that is to say, their weight, measure and number".
Amendment agreed to.
I move amendment No. 5:
In page 3, subsection (1), line 11, to delete "weight, measure or number," and to substitute "reference to such one or more of the following, that is to say, the weight, measure and number of the goods".
Amendment agreed to.
I move amendment No. 6:
In page 4, subsection (10), line 4, to delete "one month" and to substitute "two months".
This amendment extends the minimum period between the date of publication of the notice of intention to make an order and the date of the making of the order from one month to two months. This amendment was also proposed by the Confederation of Irish Industries on the grounds that longer notice would, in fact, be necessary in the event of my accepting their proposal that there should be consultation with interested parties before making the order. It was felt it was reasonable to suggest that there should be a two months gap rather than a one month gap between publication of the notice and the making of the order. That is the purpose of this amendment.
Amendment agreed to.
I move amendment No. 7:
In page 4, after subsection (11), to add the following subsection:
"(12) An order shall not be made under this section without prior consultation by the Minister with such persons as appear to him to be substantially interested in the general subject-matter of the order unless, in the case of an order under sub-section (11) of this section, it is, in the opinion of the Minister, necessary to make the order without such consultation."
This amendment was discussed with amendment No. 1.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
Since amendments Nos. 9, 11 and 12 are cognate, they may be discussed with amendment No. 8.
I move amendment No. 8:
In page 4, subsection (1), line 12, before "borough" to insert "or other".
This is a sort of drafting amendment in order to incorporate borough authorities like Dún Laoghaire in the wording. In the case of section 3 (1) the actual phrasing is:
In this section "authorised officer" means a person authorised in writing by the Minister or by the council of a county or corporation of a county borough in relation to its functional area.
The amendment is to make this read "a county or other borough" so as to bring in, for instance, Dún Laoghaire Borough or any other boroughs that would need to be included under this Act in order to enable local authorities to carry out functions in this regard. All the amendments, Nos. 8, 9, 11 and 12, are consequential on the decision to change the wording in these subsections from "county borough" to "county or other borough".
Amendment agreed to.
I move amendment No. 9:
In page 4, subsection (3), line 19, before "borough" to insert "or other".
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
I move amendment No. 10:
To add to the section a new sub-section as follows:
"(4) Where a person is charged with an offence under this Act in relation to goods packed in a container, it shall be a defence for the person charged to prove—
(a) that the commission of the offence was due to a mistake or to an accident or some other cause beyond his control; and
(b) that he took all reasonable precautions and exercised all reasonable diligence to avoid the commission of such an offence in respect of these goods by himself or any person under his control."
This is a most important amendment. Again, it is an amendment put forward by the Federation of Irish Industries. We must tell the Minister it is not the "Confederation".
They changed the name.
Did they change their name? I am caught out. However, apart from the humour in the matter, there is the situation where a man who is a director of a company or is proprietor of a business, naturally cannot see everything that is done within his business. He has to delegate responsibility to others. In this situation a person may commit an offence and may incur the most severe penalties which, in fact, include six months in jail while at the same time before God he would be entirely innocent of that offence. I am thinking of the sort of situation that could arise in the business in which I am involved. A few years ago a man removed a guard from an elevator top and removed another guard to adjust a belt. While he was standing on a ladder, the ladder shook and he leaned back and had two fingers removed from his hand. The company was responsible for the negligence of whoever removed the guard from that machine.
One can imagine somebody packing goods in a packing house who may have been instructed to weigh in a certain manner and be very careful. Human frailty being what it is, you might find he might not do so and an offence might be committed under this measure. The penalty could be six months in jail and a heavy fine. I think it would be improper not to put into this Bill a safeguard as to what should be a reasonable defence and my amendment is to add a subsection as follows:
(4) Where a person is charged with an offence under this Act in relation to goods packed in a container, it shall be a defence for the person charged to prove—
(a) that the commission of the offence was due to a mistake or to an accident or some other cause beyond his control and
(b) that he took all reasonable precautions and exercised all reasonable diligence to avoid the commission of such an offence in respect of these goods by himself or any person under his control.
I think that is a wise provision because doctors differ and patients die and so do judges. A judge might have very strong views about short weight or about descriptions of goods and would impose a heavy penalty. Probably if the penalty was too great the defendant, on appeal to a higher court, would succeed in avoiding that penalty but in the meantime he would be subject to considerable criticism as a person named in the newspapers for, perhaps, giving short weight while, in fact, he did not intend to give short weight. Just as he, in human frailty might do something wrong, those working for him did something wrong and gave short weight or a wrong description of goods or whatever the offence was.
On the principle of delegation of responsibility we say that the Taoiseach is responsible for the conduct and actions of all his Ministers, forgetting about that in regard to the last fortnight or so, but one cannot say a company director who gives an instruction which is not carried out is entirely responsible for the frailty which exists in everybody, including members of his staff. Therefore, I think my amendment provides an absolute precaution whereby an innocent person would not be held up to public odium for something that occurred in an organisation under his control in relation to which he himself had no direct part and in regard to which he had almost certainly issued an instruction to ensure it would not occur.
What Deputy Donegan suggests is all very fine but may I ask who in the company will take responsibility for negligence in such a case? As the Deputy says, it may be that the person in charge is not actually responsible for some negligence or some change in routine, a departure from the formal rules in the job. Where does the buck stop? Who exactly will be held responsible? Is Deputy Donegan suggesting some grade employee?
No.
Deputy O'Leary's question is covered under section 7 of the Bill. I have a great deal of sympathy for the case envisaged by Deputy Donegan. I know my predecessor said this in reply to the discussion on Second Reading and suggested that if the Deputy put down an amendment he would look at it seriously. I would be inclined to oppose this amendment from the point of view that it is taking the teeth out of the Bill and providing a "let off" in a great number of circumstance. If this were written into the Bill one could expect that in 90 per cent of the cases the defence would be that it was a mistake.
On Second Reading the Deputy mentioned the question of a machine going out of order. If this type of excuse is provided to the justice and pretty well substantiated, there is no guilty intent and it would be pretty hard for myself, my agents or the local authority to establish the case. I am wondering does the Deputy seriously feel that it is necessary for the protection of the person involved to have this amendment incorporated in the Bill. I am not seriously opposed to it but, even without the amendment being written into the Bill, the case envisaged by the Deputy is very hard to imagine—the justice who had very strong feeling in connection with short weight taking it out on the person who presented that defence.
The situation envisaged by the Minister is one in which everyone would be trying to get out on this amendment and it would take a whole series of perjuries to bring this about. For example, if a company director was responsible for a packing house—which is probably the place where many of these offences will occur—and if he had wilfully told the foreman to pack every package one ounce short and the foreman had told the girls or the men who were packing the articles to do so, there would have to be a whole series of perjuries before a person could get out.
It would be more likely that a machine would go out of order. The foreman or the forelady might be negligent in not checking the machine as instructed, perhaps once every hour. People get bored doing that sort of thing. The foreman might have instructed the packers to do it and they did not. Then, would it be fair and right that the company director who knew nothing about this, and who was out trying to raise a few more overdrafts from the bank manager, should be guilty under this Bill, should be so named and, in fact, subject to this pretty heavy penalty? I agree with the Minister that the likelihood is that he would not have this penalty visited upon him and if he had he would probably get away on appeal.
In business one's reputation is important. The confidence the public have in a company is very important. The goodwill of companies has been sold for thousands and thousands of pounds. The standing of a company is highly important. It could be a far greater penalty to lose that goodwill than to have to pay a heavy fine. I am grateful to the Minister for his approach to this matter but I think it is necessary to have this safeguard. You can find this in other legislation. For the purpose of seeing that an innocent person is not found guilty a good defence is defined. This runs right through all our legislation. You cannot say that the superintendent of this House should be criticised severely if someone does not brush out the floor some morning. If the House becomes filthy after three months it is quite obvious that whoever has the duty to instruct the people who clean it has been negligent in not instructing them to do so.
If something happens which constitutes an offence without a senior person knowing about it, it should be a good defence if the senior person can prove that the offence was due to a mistake or an accident or some other cause beyond his control and that he took all reasonable precautions. I should like to see on the wall of every packing house a set of regulations stating that machines have to be tested every so often so that the people working there would know what their duties were. If the Minister could see his way to accepting this amendment it would help to allay the fears of the Confederation of Irish Industries and it would augur well for the future of the Minister.
Do not the words "in good faith" at line 35 cover the Deputy's point?
That would cover a retailer or a wholesaler who would have purchased it from a manufacturer or imported it already packed. I find it difficult to resist the Deputy's amendment because of the manner in which he finally presented it. We are now on Committee Stage. I am rather nervous about the amendment which suggests that it shall be a good defence to say there was a mistake. This seems to take the teeth out of the Bill. I would prefer if the amendment read, "that the commission of the offence was due to some cause beyond his control ..." leaving out "a mistake or to an accident or ... other ..."
I accept that.
This would meet what the Deputy wants. I appreciate that in the amendment the person has to prove (a) and (b). It is a question of whether I can put this to the House.
If the Minister wishes he can amend it on Report Stage.
If I were to withdraw my amendment and allow the Minister to redraft it and put it down himself on Report Stage would that be in order?
Yes.
I might get all the Stages.
We shall write the amendment now for Report Stage. I have no objection to writing the amendment now.
My understanding was that, with the agreement of the House, it could be put down——
We can accept it now, as amended.
I am suggesting this. If the Deputy cares to present the amendment that is all right. If it is acceptable to Deputy O'Leary, and Deputy Donegan cares to combat the amendment, that is another matter. I am suggesting that sub-paragraph (a) be amended to read as follows:
(a) That the commission of the offence was due to some cause beyond his control; and
My suggestion is that the words ".... a mistake or to an accident or" and the second following word "other" be deleted so that the sub-section, as amended, will read as above.
If I withdraw this now and put it down on Committee Stage, can this be circulated?
The amendment, as amended, can be accepted now on section 4.
Then I propose that the amendment, as amended, now read as follows:
To add to the section a new sub-section as follows:
(4) Where a person is charged with an offence under this Act in relation to goods packed in a container, it shall be a defence for the person charged to prove—
(a) that the commission of the offence was due to some cause beyond his control; and
(b) that he took all reasonable precautions and exercised all reasonable diligence to avoid the commission of such an offence in respect of these goods by himself or any person under his control.
That is accepted.
I am grateful to the Minister.
Amendment No. 10, as amended, agreed to.
Section 4, as amended, agreed to.
SECTION 5.
Amendment No. 11 was discussed with amendment No. 8.
I move amendment No. 11:
In page 5, subsection (1), line 43, before "borough" to insert "or other".
Amendment agreed to.
Amendment No. 12 was discussed with amendment No. 8.
I move amendment No. 12:
In page 5, subsection (3), line 49, before "borough" to insert "or other".
Amendment agreed to.
I move amendment No. 13:
In page 5, subsection (3), lines 50 to 52, to delete from "by a council" to the end of the section and to substitute "under section 19 of the Merchandise Marks Act, 1931, by a local authority specified in that section".
This is purely a technical amendment which is necessary because the administration of the Sale of Food and Drugs Act, by virtue of the Health Act, 1970, is no longer a function of local authorities. It is a consequential, a technical amendment arising from that.
Amendment agreed to.
Section 5, as amended, agreed to.
Sections 6 to 8, inclusive, agreed to.
SECTION 9.
I move amendment No. 14:
In page 6, lines 29 to 33, to delete subsection (1) and substitute the following subsection :
(1) Section 6 of the Merchandise Marks Act, 1931, is hereby amended by—
(a) the deletion in subsection (3) of "in accordance with regulations to be made by the Minister for Finance" and ",having regard to the length of time and the expense which in the opinion of the commission will be involved in the consideration of the application", and
(b) the substitution of "Minister for Finance," for "said Minister".
This is a drafting amendment. It clarifies that the fee to be fixed by the commission must have the sanction of the Minister for Finance.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
I move amendment No. 15:
In page 6, line 49, before "fails" to insert "who".
This is a drafting amendment.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 to 14, inclusive, agreed to.
Bill reported with amendments, received for final consideration and passed.