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Dáil Éireann debate -
Wednesday, 15 May 1974

Vol. 272 No. 10

Committee on Finance. - Food Standards Bill, 1974: Committee Stage.


I move:

In page 2, line 21, before "contractual" to insert "other".

The section provides for definition of the words "food" and "sell" which occur frequently throughout the Bill. "Food" means human food, it also means any ingredient of human food. There is mention of chewing gum and similar products which might not be regarded as food because they are not actually eaten.

In addition to its ordinary meaning, "sell" means the following: (a) offer or expose for sale by wholesale or retail, (b) have in possession for sale by wholesale or retail, and (c) supply under contractual arrangements. The last meaning is to cover food served in schools, hospitals and other institutions.

Any sale could be deemed to be a contractual arrangement. The word "other" is intended to show we have something different in mind with regard to the supply of food to schools, hospitals, hotels, and similar institutions. I am asking the House to agree to include the word "other" before the word "contractual".

Amendment agreed to.
Question proposed: "That section 1, as amended, stand part of the Bill."

The definition of "food" is fairly comprehensive but it is not clear if drink, in its widest meaning, is included. By that I do not mean only intoxicating liquor but drink in any form of liquid for human consumption. If it is not included I think it should be because it is as vital to the purposes of this Bill as food in the sense of solid or dry matter.

According to our definition, "food" would cover drink. I am sure the Deputy has in mind drink such as milk which is a food also. Possibly stout could be deemed a food as well as a drink but I do not know about other beverages such as spirits. In any case that is our intention and the regulations can be drawn up to include drink.

Question put and agreed to.

I move amendment No. 1a:

In page 2, after line 32, to insert:—

"(e) advertising of food, including health foods,".

On the debate on Second Reading, a number of speakers, including the Minister for Industry and Commerce, Deputies Collins, Brennan and myself, made reference to the necessity to control the advertising of food and, in particular, the types of food that have become known in recent times as health foods. In this Bill "food" includes items that would ordinarily be referred to as drink.

A number of examples were given of outrageous claims for the efficacy, or alleged efficacy, of certain products, particularly in the quasi-health field. It was agreed by all concerned, including the Minister for Industry and Commerce, that these claims were usually without foundation and that they misled people who did not have sufficient scientific knowledge of the value or otherwise of the commodities in question.

Because they misled people they tended to create an artifical demand for certain products which would not be there if people were aware of the true nature of the substances in question, and if they were aware of the fact that they did not have all the merits which the advertising agents claim for them.

This sort of thing strikes one most in relation to television advertisements. Unfortunately, those of us in what is called the single channel area have only one television station which, for our sins, we can watch. We are bombarded every 12 or 14 minutes with the most appalling advertisements screamed out at us and repeated ad nauseam perhaps five or six times a night, if you are unfortunate enough to watch television for a whole night. The same stupid advertisement is bawled out at you.

I have in mind in particular a certain beverage which is alleged to get you over the after effects of 'flu. It is alleged not only to get the child who has the 'flu over its effects, but also to get the distraught mother who has to look after the child over the effects of having to look after the child. I am told by those who know something about these matters that the claims made for that product are totally without foundation and that, if you were to drink a glass of water into which a spoon of glucose or even castor sugar had been mixed, you would get just as much benefit as you would get if you were to drink this fairly expensive product which is pushed at the unfortunate public so constantly. The profits, of course, arising out of the sale of products such as this must be enormous. Otherwise they could not afford to carry on the advertising they do. Unless they got very substantial results from that advertising in the past, clearly they would not continue to carry it on to the same extent as they do at the moment.

In addition to that example, there is another rather incongruous one of two young ladies depicted in one of these advertisement films on television, one of whom is lying on the floor and partaking in the most strenuous exercises, panting, groaning, and obviously in great distress. Her companion is lolling back on a sofa or bed munching some form of biscuit. The biscuit muncher inquires during an interval in the activities of the young lady on the floor how much she has lost in the last week and she gasps out that she has lost 7½lbs. The biscuit muncher replies rather cockily that that is half a pound more than she lost by lying on her bed munching biscuits for the week which, of course, no doubt conveys a message to the public at large that munching this type of biscuit is of the same benefit to you as carrying out strenuous exercises on the floor for a week.

I do not know a great deal about the value of the ingredients of these biscuits but I think it is a most foolish advertisement. One would think that the reaction of most people would be to pooh-pooh the whole thing and say that nobody would be taken in by that sort of nonsense. The fact of the matter is that these are expensive advertisements. I think they cost up to a couple of hundred pounds a time to show, apart from the several thousand pounds it costs to make them.

These expensive advertisements would not appear continuously on national television unless they were codding somebody. Therefore, they must be codding somebody. The people who spend all this money would not spend it unless they were getting returns on it and unless they were making profits by selling these biscuits, or whatever they are, to guillible young ladies who think they benefit by losing weight. Apparently the more of them you eat the more weight you lose, which would strike me as contradictory but may not strike those at whom the advertisements are aimed as being contradictory.

While there is a great need to control all the various aspects of food and the consumption of food as set out at length in section 2(1), one of the areas in which the need is most obvious and most crying is the control of the advertising of food and in particular, the control of the advertising of what are now called health foods in this country and, I think, in other countries. The description may not be an accurate one but health food is the generic name by which they are generally known. Whether, in fact, they contribute to one's health is very much another question.

I have given only two examples of a large number of instances in which dishonest claims are made for some product which is of no great value in itself. Because an attitude is built up in the public mind by this continuous barrage of advertising, the sales of products which are of no special merit or value are enhanced, and the profits to the people who make them are considerably enhanced. I have no objection to their making profits provided they are not doing so at the expense of the public in the way which appears to be the case here. If the public ate or drank ordinary natural food, the benefit to their health would be likely to be greater than the benefit from these artificial synthetics which are thought up by people for the purpose of making profits for themselves.

A number of those who spoke on the last occasion, including the Minister for Industry and Commerce, think it is vitally necessary to have some control over the advertising of food generally and, in particular, the types of food I have been talking about. For that reason I would ask the Parliamentary Secretary to accept this addition to the already long list of aspects of food control and food standards proposed to be covered by subsection (1) The need for the control of advertising is at least as great as the need for the control of the other various things mentioned.

Having listened to Deputy O'Malley, I am rather inclined to invest in a couple of packets of these biscuits and possibly Deputy Collins would as well.

I will take the biscuits and the Parliamentary Secretary can do the panting.

Deputy O'Malley's comments were factual. This sort of advertising exists and everybody knows that. As he pointed out, unless the advertisers were benefiting, they would not continue to pay for costly advertisements. I see nothing wrong with the amendment, but I am asking the Deputy to withdraw it for this very good reason. The question of advertising is being taken up by the Department of Industry and Commerce and there is a proposal to introduce a consumers Protection Bill very shortly, certainly this year, to deal with advertising amongst other things. It would be more efficient and more effective to deal with advertising in that Bill rather than partly in this Bill and partly in the next one. I can guarantee that the point made by Deputy O'Malley will-be covered in that Bill.

I agree generally with the views he has expressed. I hold the same point of view as the Deputy on this question of advertising. We must protect some people from exaggeration on the part of advertisers. All sides of the House agree that this Bill is necessary and essential to give responsible Ministers power to make regulations to safeguard our food standards. In asking the Deputy to withdraw his amendment, I am giving him an assurance that it will be covered in the Consumers Protection Bill and it would be more effective to have comprehensive coverage of advertising in one Bill rather than incorporate his amendment in this Bill and have to repeal it in the proposed Consumers Protection Bill.

It is nice to hear from the Parliamentary Secretary that he accepts in principle the amendment in Deputy O'Malley's name. I fully understand and appreciate what he has said with regard to legislation being introduced into this House at some stage or other by the Minister for Industry and Commerce to protect the consumer from unscrupulous manufacturers. I accept the Parliamentary Secretary's assurance that it might not be too long before this legislation is introduced by the Minister for Industry and Commerce. But I would put it to him that he could accept Deputy O'Malley's amendment, incorporate it in this Bill and then repeal it at the stage when the Minister for Industry and Commerce finally gets his legislation through the House.

With all due respect, I think it fair to say that the record of the present Government with regard to living up to their promises of getting through as much legislation in the shortest time possible has not been an extremely satisfactory one. I do not say that in the hope of scoring any political point whatsoever off the Parliamentary Secretary. I am saying it because I believe that his colleague in the Labour Party, the Minister for Industry and Commerce, might not be in a position to bring in this legislation for a very long time to come.

We all know that the food industry is a large and complex one. We have to be very careful to ensure that the housewife and consumer are protected at all times. I believe it should be an offence to mislead the consumer about the dietary character and vitamin content of any food or drink. Indeed, I also think it should be an offence to mislead, by illustration, even if the wording used on the label is accurate. This is something we have observed in recent years and on which we should take immediate steps to protect those whom we represent. For example, one can decorate a tin by an attractive picture of, say, a dainty dairymaid engaged in her occupation so as to suggest that the product contains milk when in actual fact it does not. Possible misrepresentation of the contents of food or drink can be conveyed not alone by the wording but by illustration and we should guard against that specifically.

I accept what the Parliamentary Secretary has said about his colleague on legislation but I put it to him that he might accept this amendment, which is in no way contentious but which would be there as a safeguard for the next 12 months, 18 months, two years or whatever length of time it takes to have the measures proposed by the Minister for Industry and Commerce enacted by Oireachtas Éireann.

As I said, section 2 gives three Ministers wide powers in so far as the making of regulations is concerned. Therefore, I do not see the reason for adding Deputy O'Malley's amendment in view of the fact that the Government feel strongly on this question of protecting the consumer, so much so that a special Bill will be introduced in the Dáil which will be entitled the Consumers Protection Bill. Therefore, I would request Deputy O'Malley to withdraw his amendment and I can assure him that advertising will be dealt with in one part of that future Bill. I am sure everybody in the House feels that special attention must be given to advertising and I have given an assurance that it will be in that Bill. I shall not take issue with Deputy G. Collins on his little remark about promises and assurances because his party's history was not so good but ours is excellent in that respect.

Seeing that this Bill is more or less acceptable to all sides of the House, I would ask Deputies to allow it go through without the amendment proposed. As I have said, I accept it in principle and it will be covered in the future Consumers Protection Bill.

I merely want to ask the Parliamentary Secretary if it is accepted in principle but is not being included, how can he claim that it is being accepted? The advertising of food, including health foods, has been subjected to very many exaggerated claims. I am quite sure the Parliamentary Secretary will agree that the control which is supposed to be exercised by RTE over advertising keeping it within certain limits is not being exercised effectively. I think this is one of the reasons why this amendment should be included. I fully agree with the points made by Deputy O'Malley. Exaggerated claims are dishonest. I do not think it right that the people who make the type of exaggerated claims about which we have been speaking—and there are many other examples we could give—should be allowed to deceive. In my view, it is the same type of deception as that of reducing the amount of a product contained in a packet from week to week, unless forced to show the amount on the packet, which manufacturers will be forced to do under this Bill.

I know it has taken a long time to bring this measure before the House but I welcome this Bill. One of the reasons for this delay has been our entry into the EEC and our conforming with what other countries are doing. But, as Deputy G. Collins has said, we do have an opportunity to include the amendment put down by Deputy O'Malley and it would be a simple thing to have that repealed immediately the other Bill comes into operation. We have no indication of when the other Bill will be forthcoming. The Parliamentary Secretary is in favour of the amendment. Yet he does not feel that it should be included in this Bill. I can see no drafting or implementation difficulty whatsoever if this amendment is accepted. It is a very straightforward and simple one.

While on my feet, I should say that I notice the country of origin is not required to be stated under the Bill. I wonder could the Parliamentary Secretary tell us if there is any particular reason why the country of origin cannot be shown on all packages, which is the law in most other countries. Most packages imported here bear the name of the country of origin because they have to conform with the laws in other countries but I do not think that law applies here. Perhaps the Parliamentary Secretary would investigate this matter and let me know if he has any information as to what is the position in that regard. What is the difficulty of including this amendment on the control of advertising in the Bill?

As I indicated —and the Deputy mentioned also the EEC—this Bill is to raise our standards to the levels obtaining in other countries with regard to our food. I can see no justification—as the Deputy is asserting here—that one should include an amendment to a section of a Bill and then, in three or four months' time, delete that amendment.

Is it going to be in three or four months' time?

I have given the House an assurance that there will be a Consumers Protection Bill brought before the House this year. It will deal rather comprehensively with advertising. It is much better to allow this Bill to go through as it is. The regulations that can be made are exceptionally wide. Section 2 will give a sufficiency of powers to the Ministers concerned to allay the Deputy's fears. In my view the question of origin will be covered as well under this section. The inclusion of the country of origin on packages will be fully covered and we need not worry on that score.

Under what part of section 2 is it covered?

I am sure the Deputy has read the section. It is covered under this section. It is mandatory to set down the name of the country of origin on the label or package. This Bill is to enable the appropriate Ministers to make regulations and it will be lawful to make regulations under section 2 covering the point made by the Deputy.

I was glad to hear the Parliamentary Secretary say that he accepted the amendment in principle and that he agreed with the sentiments I expressed. He said he did not want to accept the amendment, not because he disagreed with it, but because this, together with a lot of other things, would be covered in a subsequent Bill. If I could be assured that such a Bill was about to be published and would be passed in the near future I would be happy to withdraw the amendment, but as Deputy Collins has said our experience has been that we have to wait an inordinate length of time for vitally important Bills. I can give the Parliamentary Secretary one example. At the beginning of January, 1973, there was circulated by the Minister for Health in the last Government a Misuse of Drugs Bill. It was arranged that that Bill would get its Second Reading in the first week of February, 1973. The general election intervened and, of course, the Bill fell with that Dáil.

The Bill was introduced and got its First Reading immediately after the coming together of the new Dáil. At that time we were promised it would be circulated to Deputies and be brought forward for Second Reading within a very short time, as we might indeed have reasonably expected, the Bill having already been drafted and published. Notwithstanding the passage of 14 months since that Bill was given a First Reading we still have not seen it. That is a vitally important matter, perhaps even more important than the Bill now before us. Many people would say it is a great deal more important because human life is at risk and human health and happiness are affected every day that passes without any sign of that Bill appearing.

It is generally accepted that with the exception of the Finance Act of last year and of the gerrymander and other associated electoral Bills which we have seen in the House since, no other Bill that this House has dealt with up to very recently, in the term of office of this Government, has been one other than one prepared by the previous Government. For that reason I must join with Deputy Collins in doubting whether or not we will see a comprehensive Consumer Protection Bill within a reasonable time. The Parliamentary Secretary said he expects it will be introduced in the House before the end of this year. Of course, the end of this year is 7½ months away. He said it would be introduced in the House during that period. It can be introduced at any time by simply bringing in the long and short titles, giving it a nominal First Reading. It may well turn out, even if it is introduced during the next 7½ months, as the Parliamentary Secretary expects, to be like the Misuse of Drugs Bill, that we will still be waiting for it 14 months after its First Reading.

While I do not want to doubt the good intentions of the Parliamentary Secretary and the Government in relation to this I know that consumer protection is an enormous field. It is a very complicated one and one in which there are many difficulties in regard to legislating for it because it is very easy to fall into a large number of potential traps. The drafting of any Consumer Protection Bill must of necessity be a long and tedious matter. It will need redrafting, I would imagine, on several occasions and without any fault on the part of any particular individual or group it might well be a very long time before this House is in a position to debate and pass such a Bill.

I accept, of course, that such a Bill will cover the matters I have been talking about and that I referred to in my amendment. I suggest to the Parliamentary Secretary and to the House that of all the aspects of consumer protection which are most urgently in need of legislation the matter of advertising food and quasi-medicinal products is where the need is greatest. For that reason, because we cannot with any certainty expect to have a Consumer Protection Bill enacted within 18 months or two years, I see no reason at all why the very necessary protection for the public that would be given by this amendment, which I am glad to say the Parliamentary Secretary agrees with, could not be given now and if necessary the provision here repealed by the comprehensive Bill afterwards. It would at least give 18 months' or two years' protection to people in this very vital field which they would otherwise not have.

I do not think, since protecting people consists of such a simple thing as accepting this very short and concise amendment, that it is valid to ask that it be withdrawn simply because a comprehensive Bill is promised for some time in the future. For those reasons I would ask the Parliamentary Secretary to accept the amendment now and by all means repeal it if desired in the comprehensive Consumer Protection Bill afterwards.

I want to support Deputy O'Malley on this amendment. I was intrigued to hear the Parliamentary Secretary agreeing with Deputy O'Malley on this issue. Deputy O'Malley gave varying examples of the manner in which producers of those alleged health foods or drinks are misusing the public through advertising. There is a great need for remedial action in this matter. There is a simple amendment here which in no way alters the actual content of the Bill in so far as the Government want to go. This section covers the powers of three Ministers. This is a joint power which can be exercised by the Minister for Industry and Commerce, the Minister for Health and the Minister for Agriculture and Fisheries. There is no doubt that the Minister for Health is interested in this matter. This Bill is sponsored by the Minister for Agriculture and Fisheries, whose Parliamentary Secretary is here discussing it on Committee Stage. The Minister for Industry and Commerce contributed to it on the Second Stage. Here we have an amendment which is known to the Government. They are aware that it has been tabled, aware that it specifically refers to health and I had hoped that the Minister would come in on this debate to give us the benefit of his views in regard to it.

The Parliamentary Secretary said a while ago that the record of this Government in regard to putting legislation through was good and he criticised Deputy O'Malley and the former Administration for not having looked after these matters before now. The Parliamentary Secretary conveyed a further promise from the Minister for Industry and Commerce about a Consumers Protection Bill but I am tired listening to that kind of promise. While I was Minister for Industry and Commerce quite an amount of progress had been made in compiling the various sections of this Bill but on many occasions in the past 15 months I have heard the Minister for Industry and Commerce promising that various pieces of legislation would be introduced. If we went through the records, I believe we would find that the Minister for Industry and Commerce promised the Consumer Protection Bill before the end of 1973. He certainly promised a Monopolies and Mergers Bill; he promised action on motor insurance. But the situation now is, as I see it, that we cannot have a Consumers Protection Bill no matter what advice the Parliamentary Secretary has received from Industry and Commerce or from his own Department until a report is made by an advisory committee which the Minister set up. The experience, as regards activity in the Department of Industry and Commerce in the past 15 months has been shattering and the Minister has covered up his inefficiency and inactivity by creating a succession of consultative or advisory bodies.

This consumer protection legislation should cover a very wide field but I can see no justification for the Parliamentary Secretary to the Minister for Agriculture and Fisheries saying on the one hand that he fully agrees with the sentiments Deputy O'Malley expressed in support of this amendment and, on the other hand, saying: "Wait for it. The Minister for Industry and Commerce is looking after that and will cover it in his legislation." The opportunity is presented in this Food Standards Bill, 1974 for the inclusion of a provision as suggested in the amendment, to give the Minister power in this regard. I heard the Parliamentary Secretary replying to Deputy Briscoe and he seemed to be able to generate power in the section because Deputy Briscoe asked him where the power was set out covering the question he raised and he was given the sort of answer that the power was there and he could take the Parliamentary Secretary's word for it. If instead of putting down this amendment Deputy O'Malley had asked if the section covered the type of situation he outlined he would probably have been told, yes, it was a very wide ranging section and that under it the three Ministers had tremendous powers.

When we have an opportunity under section 2 of putting in this amendment I see no reason why it should not be included seeing that the Parliamentary Secretary fully agrees with the sentiments of this side of the House in regard to it. If it were found necessary, the Consumers Protection Bill at a later stage could include a section removing that temporary provision. I recollect appeals to the various advertising groups by successive Ministers through the years asking them not to associate themselves with what I would describe, having listened to Deputy O'Malley, as illegal advertising claiming for a product something the product had not got so as to fool a gullible public. Deputy O'Malley has presented the opportunity of including in this section a provision which the Parliamentary Secretary welcomes but for some reason does not want to include. I see no reason for this attitude and I would ask the Parliamentary Secretary to accept the amendment since he fully agrees with it.

I understood that this Bill was to go through by agreement more or less and that there was very little at issue. That was the information I got prior to the commencement of this discussion.

There is nothing at issue. You agree that it is right.

I think the Deputy can read and it is the Food Standards Bill, 1974 that we are dealing with. The Deputy raised a question of what advertising may claim for a product. I agreed in principle with what he said but this is not the appropriate type of Bill in which to insert that kind of amendment. Going back to the Deputy's own case, the ladies who advertised the biscuit that is supposed to have such a slimming effect, if that biscuit is up to standard, irrespective of whether it takes off seven and a half pounds by eating it for a week or adds seven and a half pounds, if its quality is correct, under this Bill it is in order to sell it. What Deputy O'Malley is talking about is a matter that can only be covered by the Consumers' Protection Bill.

This Bill, even though the provisions are wide ranging, would not preclude the sale of that particular type of biscuit if its quality were completely in order. What we are doing here is to give power to Ministers to make regulations so that food standards can be raised and put on a par with the standards applicable in other countries. A provision in relation to the advertising of food which is up to standard in so far as food requirements are concerned but which does not do something which it is supposed to do cannot be included in this measure. That is a very big question and for that reason the Government intend introducing a special Bill to deal with that kind of advertising. It is a separate matter altogether.

Section 2 of this Bill is wide ranging and it covers items such as those mentioned during the debate. The Ministers can make regulations to cover such things as the country of origin and the contents of a package but advertising is a different matter altogether. Advertising requires special legislation and special consideration which it will get in the Consumers' Protection Bill. For that reason I do not propose to accept the amendment because it is not appropriate to this Bill.

I am at a loss to understand the argument being put forward by the Parliamentary Secretary. He mentioned that he was given to understand that this Bill would go through but does he imply that Deputy O'Malley put down this amendment lightly with no intention of pursuing it? If the Bill was agreed, as he suggests, then there would not have been any necessity for Deputy O'Malley's amendment because it would have been included.

In my view the Bill is very important because it covers three Ministries, Agriculture and Fisheries, Industry and Commerce and Health. Despite the fact that it covers these three Ministries, the Government have seen fit to send in a Parliamentary Secretary to meet us on this amendment. The advertising of food, including health foods, as mentioned in the amendment is very basic and fundamental to this Bill. The arguments put forward by the Parliamentary Secretary do not carry any weight. The amendment is very important because the description of food implies what it is. A claim as to what such foods can do is very important and for this reason I cannot understand the Parliamentary Secretary saying that he finds himself in a difficulty about including it in the Bill.

If the description on the package is important it is equally important that what the contents of the package is supposed to do for a person should be covered in this Bill. It is important that the message is got across to the people accurately and correctly because an advertisement can be as inaccurate as an inaccurate label.

I should like to ask the Parliamentary Secretary to be reasonable about this matter. He appears to have changed his ground completely because when he was replying to what I had to say originally he agreed with me and said that the only reason he was not accepting what I said was that it was intended to cover these matters in another Bill at a future date. The Parliamentary Secretary now tells me that this amendment is not appropriate to the Bill at all, quite a different matter.

The Parliamentary Secretary has complained that we are not allowing the Bill to go through without examination and has accused the previous Government of not having brought in such a Bill during their term of office. Those sort of untrue statements are not very conducive to the smooth passage of this or any other Bill in this House. Everybody agrees that my amendment would improve the position. I have given a number of examples of things that are being foisted on the public every day. We all agree that they are misleading and are deliberately done. I would like to put a stop to this sort of carry on and it is in the public interest that we should do so.

This Government intends to do so in the Consumers' Protection Bill.

We have an opportunity of doing that now and not of doing it at some unspecified date in the future, possibly two or three years away. We should avail of the opportunity we have now of dealing with this matter. In my view it is very small-minded of the Parliamentary Secretary to refuse to do something he knows is right because this amendment is in my name.

In fairness to the Minister, the suggestions put forward by other Deputies and myself on Second Stage, they number about seven in all, are nearly all incorporated in the Government amendments. One suggestion which was not incorporated, however, is that which is contained in my amendment. The Minister for Industry and Commerce devoted most of his speech to the topic which is relevant to my amendment. He was anxious to have this abuse of the sale of food and quasi-medicinal products cleared up. People are being encouraged and brainwashed into buying things that are of little or no value to them. Numerous examples were given on the last day by the Minister for Industry and Commerce and I.

The Parliamentary Secretary, because he is a Parliamentary Secretary, may feel that he cannot accept an amendment but I hope he will get over that stage as he gets more experience. No harm would be done to him if he accepted this amendment which is concise, clear and of vital importance. If my amendment is accepted, the complaints which I have made can be remedied in a matter of weeks when the Bill becomes law instead of having to wait two or maybe three years for the promised Bill on consumer protection. This particular Bill can be repealed when the more comprehensive Bill which has been promised is passed.

I know the Parliamentary Secretary to be a reasonable man and I am sure he sees validity in the argument put forward in relation to this amendment. Not so long ago a thorough investigation was carried out by the Insight team of The Sunday Times into advertising and nutritional value claims made by advertisers in relation to foods, particularly health foods. They found that practically 100 per cent of the foods they investigated bore no relation whatever to the claims made by the advertisers.

We are in a very susceptible position in relation to health foods because people are becoming more and more conscious of diet and the necessity for keeping down weight— some of us may not take as much notice of it as we should—and there is a whole new awareness by the public of the availability of health foods and of the claims made by advertisers that they can help people to reduce weight and, while doing so, actually become healthier. The foods are alleged to contain all the protein and nourishment necessary to sustain people and those of us who occasionally watch TV know very well how exaggerated many of these claims are.

I think the Parliamentary Secretary is unreasonable in failing to see the validity of this amendment and failing to recognise that he has a duty to protect people from false advertising. In some cases those to whom advertisers are beaming their advertisements are very guillible people who certainly need to be protected. This is a simple amendment. It would tighten up the Bill considerably. The Parliamentary Secretary must be aware that not alone is this market flourishing by making false claims but it has resulted in some cases in people deteriorating physically and mentally as a result of diet based on these alleged health foods and the claims made by their manufacturers.

The Parliamentary Secretary would be acting very responsibly and conscientiously if he were to accept this amendment. He may say no cases have come to light but, with a little bit of research, he will find that the report published by The Sunday Times caused a tremendous amount of disquiet. We now have an opportunity of putting a situation right and ensuring that people are not manipulated and used for gain by companies which have absolutely no scruples by ensuring that they do not get away with anything. Why will the Parliamentary Secretary not accept this very simple amendment? There is nothing political in it. By accepting it he will be doing a very good service to the people.

I have already given the reasons for not accepting this amendment at least three times. I said I agreed generally with the sentiments expressed by Deputy O'Malley and I explained it was the intention of the Government to bring in a comprehensive measure to be known as the Consumers Protection Bill to cover not alone food but certain other commodities as well; there are such things as soap powders which may or may not do what they are alleged to do.

But food is the most important.

That is so, but there is no need to worry. This measure is wide ranging and under section 2 (b) the Minister will be entitled to draft regulations and through the medium of those regulations appropriate action can be taken. The consumer has to be protected where food is concerned, in the first instance, and, secondly, and perhaps more importantly, where other items are concerned, items such as washing powders and so on. If Opposition Deputies were reasonable they would agree that a comprehensive measure is needed to cover everything. As I say, I agree with the sentiments expressed by Deputy O'Malley. It may be possible to cover advertising under section 2 but because of the Bill it is intended to introduce it is not necessary to do that in this measure. I do not take issue with the sentiments he and Deputy Crowley expressed. We all realise that some manufacturers overstate the qualities of their products. Legislation is essential to deal with that kind of advertising and we propose to do just that. I am asking Deputies to leave that matter over for the moment. Their views are acceptable. Protective measures are necessary and these will be dealt with on a comprehensive basis.

I have an idea quite frankly that the Parliamentary Secretary has come in here under the mistaken impression that this Bill will be rubber stamped in about five minutes. I agree that all abuses where false advertising is concerned cannot be covered in this Bill. The Parliamentary Secretary mentioned soap powders in relation to which certain claims are made which can or cannot be substantiated. He said that under section 2 (3) the Minister may be able by order to deal with a wide range of goods. He also said that consumer protection from the point of view of food is a separate issue and we should not complicate it. Section 2 (3) reads:

Regulations under this section may provide that a person shall not—

(a) manufacture food intended for sale for human consumption,

(b) prepare food intended for sale for human consumption,

(c) import food intended for sale for human consumption,

(d) transport food intended for sale for human consumption,

(e) store food intended for sale for human consumption, or

(f) sell food intended for human consumption,

if the food does not comply with the regulations.

I can see this being a problem. I do not know how a person will get rid of food if he cannot transport it to a dump or somewhere else. If this amendment is not accepted what the Bill will say is that one cannot import food, cannot prepare food, cannot manufacture food, cannot transport food, cannot sell food but can make any claim one likes for it.

That is not so.

There is nothing in the Bill to prevent a false claim being made in connection with food.

Is this not an enabling Bill which will give power to three Ministers named in the Bill to draw up regulations?

Controlling the quality of food.

Under a very wide range of headings.

We are all for that but the point is that it will defeat the object of the exercise if a Minister for Industry and Commerce or Agriculture and Fisheries or Health makes regulations that a particular food must measure up to a particular quality but there is nothing wrong with putting and advertisement in the newspaper to say that that food contains twice as much of some given thing as is in the food. That will be legal. I am now beginning to see why the Parliamentary Secretary is opposed to this. The Government Information Services claim about twice as much for the Government as they are doing and cover up for what they are not doing. Our legislation is to be prepared on the same lines.

Would the Deputy read section 2 (1) (b)?

Do not suggest that the regulation which describes food and the component parts of food covers the advertising of food in the newspapers.

That will be for the Minister when he draws up the regulation.

The Parliamentary Secretary is representing the Minister here.

And he must accept the responsibility that goes with it.

I do, but I am saying that regulations will be made by the Minister subsequently.

The Parliamentary Secretary is labouring under the difficulty that in the explanatory memorandum prepared by his Department there is a little note which says that the Minister for Industry and Commerce is at present preparing a Consumer Protection Bill which will cover this. What I am saying is that I agree that the Consumer Protection Bill will cover a far wider field but why not go ahead and cover what we can cover in this Bill, what we can cover now that a set of standards is being created whereby a manufacturer or importer must have a particular quality in his product? Let us take the example of the slimming bread mentioned by Deputy O'Malley. The bread must have a certain percentage of this, that and the other but while the baker must see to it that this is so there is nothing in this Bill to prevent him putting an advertisement for his yellow crust loaf in the paper and claiming that this loaf contains a, b and c which has the effect of reducing one's weight by 7 lbs, even the Parliamentary Secretary's.

It could be good for Fianna Fáil as well.

The Deputy has just come in and he does not know what we are talking about. I sympathise with the Parliamentary Secretary in so far as he has a problem. Perhaps we could get over this if the Parliamentary Secretary would say that he will have a chat with the Minister and his colleagues in the Cabinet between now and Report Stage with a view to seeing if they would introduce an amendment covering this.

The Parliamentary Secretary tried to give the impression that this Bill was an enabling Bill and that if he got it he would be empowered to do anything he wanted to do. If he accepts Deputy O'Malley's amendment which he honestly agrees with and accepts in principle——

I accept that the statement he made here was generally factual. That was the opinion I expressed on Deputy O'Malley's original statement on this measure.

I do not know what "generally factual" means. Either it was factual or it was not. I think at the time of Deputy O'Malley's first submission on his amendment the Parliamentary Secretary agreed with the principle behind the amendment and said so. While Deputy Lalor was contributing the Parliamentary Secretary interrupted and tried to give the impression that this is an enabling Bill. Of course it is and we as a party are far quicker to accept this type of legislation than the Parliamentary Secretary and his party and some of his colleagues were when they were in Opposition.

Why did Fianna Fáil not introduce measures like this when they were in power?

A lot of the preparation for this was done by Fianna Fáil.

The Parliamentary Secretary is not fully conversant with what has been happening. He is only standing in for his Minister.

I am fully conversant with it and I am aware that Fianna Fáil commenced on this matter away back in 1969 and forgot about it after the election.

The Parliamentary Secretary should not get hot under the collar and he should not allow himself to become upset because it is a small thing but it is an important thing. On a Bill on which we practically have agreement there is no reason for him to become upset. It would not be necessary at all if the Parliamentary Secretary was not being so awkward and stubborn. He knows, if he does accept the amendment, that when the legislation which he has told us will come from his Labour colleague, Deputy Keating, the Minister for Industry and Commerce, materialises it will be very easy to repeal this particular part of this Bill.

On Second Stage there were suggestions put forward by all who contributed. We had two contributors from the Government side and the remainder of the speakers were from the Fianna Fáil benches. Many good suggestions were made and I am glad to see that they were accepted. The Minister said quite graciously that he would give them due consideration and he did. If I were sitting in the Parliamentary Secretary's place I would have no objection to accepting an amendment with which I agreed in principle and anything that would protect the consumer, the housewife and the small percentage of the general public that might be open to exploitation by unscrupulous manufacturers or advertisers. I appeal to the Parliamentary Secretary to accept it, incorporate it in the Bill and have it as legislation for the next year or two or three until something else comes along from the Minister for Industry and Commerce. He has agreed that it would help the Bill.

I am disappointed the Parliamentary Secretary did not grant our request and incorporate the amendment in the Bill. I should like to refer to the food which means drink and especially the advertising of alcoholic drink and the claims being made for alcoholic beverages. It is a situation we must view with a certain amount of disquiet when we reckon that 15 per cent of people in psychiatric institutions are there because of the effects of alcohol. Here we have an opportunity to have some form of control over the advertising and sale of alcoholic beverages but we are passing up that opportunity because the Parliamentary Secretary had said there is a Bill in the pipeline that will cover that matter.

I am particularly concerned about the fact that supermarkets are selling alcohol, that young people are purchasing quantities of cider from them and starting on the road to alcoholism. In the regulations governing the selling of food for human consumption, we should view with serious concern the easy availability to young people of alcohol in supermarkets.

The Parliamentary Secretary must be as conscious as I am about the dangers in this situation. We must start at the source of this demand, namely, the advertising in the Press, on radio and television, and we must consider also the claims made regarding the effect of consuming certain alcoholic beverages. We cannot be complacent or smug in this House while people outside are being driven to psychiatric institutions because our legislation is so loose that we are opening the floodgates even wider to all kinds of abuses.

While the amendment might not go the whole way to prevent these abuses, at the same time it would be a brake or a restriction on the advertising of food and drink products. The Parliamentary Secretary is in the same constituency as myself; he is an active politician and is as aware as I am of the feelings of the people in this matter. As he is the person charged with responsibility in this instance, he has an obligation to ensure that he does all in his power to alleviate the terrible suffering incurred because of the claims made for alcohol and the manner in which it is glamourised in national advertising.

If the Parliamentary Secretary were the parent of a child who bought alcohol in the supermarket and started on the road to Skid Row because of this advertising, would he not be annoyed and irate at the legislators who did not take the necessary action?

The Parliamentary Secretary may be in a predicament in that he may not have the power to accept the amendment. If he were to tell us he is prepared to accept it provided the Minister agrees, that would be reasonable. We cannot leave this legislation as it is and not use it to the utmost benefit of the community we represent. The amendment would go a long way towards ensuring that the kind of abuses I have referred to do not continue.

I am constrained to go back a little regarding the reason for this Bill. The Codex Commission was established in 1962 under the auspices of the United Nations. It is unnecessary for me to outline the functions of the commission because they were set out clearly in the Minister's statement on the Second Stage of the Bill.

A surprisingly large number of countries—more than 100—joined the commission in 1962 with a view to improving food standards. Seven years later the Government of the day appointed a national commission. At column 79 of the Official Report dated 24th April, 1974, the Minister stated:

With this in view a national codex committee was established in 1969 to advise the Government on all matters relating to food standards drawn up by the commission. The committee includes representatives of Government Departments, the State Laboratory, the Institute for Industrial Research and Standards, An Foras Talúntais, consumer interests and the various sectors of the food industry, under the chairmanship of an officer of my Department.

That was in 1969 and the Government were in office until 14th March, 1973. Four years passed but nothing was done. We came into office on 14th March, 1973——

A black day for Ireland.

It was a very white day for Ireland.

A red one, perhaps?

Will the Deputy please explain the term "red"?

Red is the colour that appears on the balance sheet when matters are in a financial mess. Red is the colour of the shirts of some people. It is many other things.

Let us get back to the Bill.

Within 12 or 13 months of taking office the Government introduced this measure to Dáil Éireann and set out in a rather comprehensive form the powers granted to the Government under the different sections and particularly section 2. Deputy Collins said we were all agreed on this. I have gone fully into this Bill. Deputy Crowley need not shed any tears about my responsibility. I am responsible for the Committee Stage of this measure. I examined it with my departmental advisers and then I went over it myself to see what should or should not be provided for and whether the amendments set down were appropriate.

That is what you are being paid for.

I am not complaining. It is Deputy Crowely who is worrying about me.

It is your job. Do not make a virtue of it.

In actual fact, there is great satisfaction in it. We are contributing towards the improvement of our food standards. In four years Fianna Fáil did nothing. We are now doing the job. I have been worrying about the nature of some of the advertisements on television, in the Press, and so on and I think some action should be taken. Knowing that a rather comprehensive measure is to be brought forward, I thought there was no need to add any amendment to section 2 because everything is covered from (a) to (j) in section 2 (1).

I have indicated my reasons for asking the House to leave the section as it is. I certainly hope that a wider ranging Bill dealing with advertising, not only of foods but appliances of every kind, will not be too long delayed. I ask the House to agree to the section. We feel it is sufficiently comprehensive at this stage. If we have waited from 1962, when the commission was established, to 1974, surely we can wait two or three months longer to get what the Opposition feel is a necessary addition. To my mind, a person misrepresenting a product can be brought to heel under a regulation made under section 2.

Amendment put.
The Committee divided: Tá, 51; Níl, 57.

  • Ahern, Liam.
  • Allen, Lorcan.
  • Andrews, David.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Breslin, Cormac.
  • Briscoe, Ben.
  • Browne, Seán.
  • Brugha, Ruairí.
  • Burke, Raphael P.
  • Callanan, John.
  • Calleary, Seán.
  • Colley, George.
  • Collins, Gerard.
  • Connolly, Gerard.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Daly, Brendan.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Farrell, Joseph.
  • Faulkner, Pádraig.
  • Fitzgerald, Gene.
  • Fitzpatrick, Tom. (Dublin Central).
  • Flanagan, Seán.
  • Gallagher, Denis.
  • Gibbons, Hugh.
  • Haughey, Charless.
  • Healy, Augustine A.
  • Hussey, Thomas.
  • Kenneally, William.
  • Kitt, Michael.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Leonard, James.
  • Loughnane, William.
  • Lynch, Celia.
  • Lynch, Jack.
  • MacSharry, Ray.
  • Molloy, Robert.
  • Moore, Seán.
  • Murphy, Ciarán.
  • Noonan, Michael.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Smith, Patrick.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Walsh, Seán.
  • Wilson, John P.


  • Barry, Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Bermingham, Joseph.
  • Burke, Dick.
  • Burke, Liam.
  • Cluskey, Frank.
  • Collins, Edward.
  • Conlan, John F.
  • Coogan, Fintan.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Coughlan, Stephen.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Dockrell, Henry P.
  • Dockrell, Maurice.
  • Donegan, Patrick S.
  • Donnellan, John.
  • Enright, Thomas.
  • Esmonde, John G.
  • Finn, Martin.
  • Flanagan, Oliver J.
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Griffin, Brendan.
  • Harte, Patrick D.
  • Hegarty, Patrick.
  • Hogan O'Higgins, Brigid.
  • Keating, Justin.
  • Kelly, John.
  • Kenny, Henry.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McDonald, Charles B.
  • McLaughlin, Joseph.
  • McMahon, Larry.
  • Malone, Patrick.
  • Murphy, Michael P.
  • O'Brien, Fergus.
  • O'Connell, John.
  • O'Donnell, Tom.
  • O'Leary, Michael.
  • O'Sullivan, John L.
  • Pattison, Séamus.
  • Reynolds, Patrick J.
  • Ryan, John J.
  • Ryan, Richie.
  • Spring, Dan.
  • Staunton, Myles.
  • Taylor, Frank.
  • Timmons, Godfrey.
  • Toal, Brendan.
  • Tully, James.
  • White, James.
Tellers: Tá, Deputies Lalor and Browne; Níl, Deputies Kelly and B.Desmond.
Amendment declared lost.
Question Proposed: "That section 2 stand part of the Bill."

Deputy Briscoe made the point that it would be very helpful if the regulations made under this section included a regulation to the effect that the country of origin of any foreign food or product were shown. We have not an amendment down to that effect but I give notice that Deputy Briscoe or I will put one down on Report Stage. Perhaps the Parliamentary Secretary would indicate if he favours such a proposal because it is important that people should be clearly aware of the origin of the product. Nowadays, with the elaborate sort of packaging we have, it is often impossible to know the country of origin of particular food products. I cannot see anywhere in section 2 that it is obligatory to show this or that the Minister has power to make it obligatory to show it. In subsection (4) there is reference to regulations about not permitting export to certain countries. The question of imports, and the countries from which they come, is more important.

The Minister has power to make regulations to do as as Deputy Briscoe and Deputy O'Malley suggest under subsection (1) (i) of this section which refers to packaging, labelling and presentation of food. The Minister has power to make a regulation which provides for the labelling of goods and he can make it mandatory to have the country of origin displayed on the package. There is no need for an amendment to cover this. All the authority necessary is given here.

While the number of regulations mentioned here, if they were properly enforced, might well give us a good code for the control and sale of food and such things as ence gained already, where alcoholic drink can be included as food, we know of the grave concern in the country about the way the Government have failed to produce any sensible control on the sale of food, such as alcohol, in supermarkets. What do the Government intend to do on this point? Even though I am a teetotaler I do not speak because of that. The first complaint I got was from a supermarket owner who pointed out that because of the design of supermarkets and because drink was displayed in such an appetising way it caused impulsive buying among young people.

I have been told that if a supermarket is situated near a football ground and the young people are playing football and have their friends to cheer them on it is very difficult for the supermarket owner to stop those young boys from buying drink or getting it in some other way. The drink consumed is cider, which is alcoholic. We see evidence everyday in this country of the problem of alcoholism but I do not think we are doing very much to ensure that our youth are given protection in their most formative years.

I want to pay tribute to the vintners' association who do a lot of work in trying to curb the abuse of drink. Unless the Government, by legislation, set a very high example this nonaction will breed cynicism among the people. They may well ask why the Government should pass their well-sounding legislation when in fact it is not effective and our young boys and girls start off on the path of alcoholism because the Oireachtas have not taken the proper steps to ensure that the sale of this type of food is controlled in the places I have mentioned.

I suppose all publicans would like to see the sale of drink withdrawn from supermarkets but I do not think it is relevant to the section we are discussing.

It is relevant to subsection (3) of this section.

We are trying to get our standards into line with international ones. If food is interpreted to mean drink for sale in a supermarket and it is of the quality and standard demanded then I assume it will take another type of legislation to prevent that happening. In this Bill we have to ensure that the food offered for sale is of the correct standard.

I do not want to interrupt the Parliamentary Secretary but we are making regulations here governing the sale and storage of food. Section 2 (2) (c) covers that point.

The Deputies are making the point that drink should not be sold in supermarkets. You have supermarkets and minimarkets and on the Continent drink is sold in such markets.

We maintain drink should only be sold by licensed vintners.

The National Licensed Vintners' Association would agree with the Deputy on that.

A lot of parents of young children who have gone on the wrong road would also agree with this.

We are concerned in this measure with ensuring that the food and drink offered for sale is up to standard and that it must be stored in appropriate places. I do not know if Deputy Moore's assertion that it must be stored in some place outside the supermarket would be acceptable.

In a special department.

There is no great issue on the question that the drink must be stored within the supermarket.

I presume that the same laws and regulations which apply with regard to the sale of intoxicating liquor in publichouses apply here.

You must have some uniformity in the regulations. The Bill is mainly concerned with the quality of the food, that it is up to international standards and that it complies with the standards laid down by the Codex Alimentarius Commission. That is the main purpose of the Bill and that is why section 2 is so broadly ranging to cover almost any eventuality and possibly it will cover some of the points made. It could cover the point made by Deputy Moore. The Deputy wants drink in a supermarket to be in a separate department.

Special compartment.

Naturally, supermarket managers like to display their goods in the most conspicuous places and you do not find corners in supermarkets.

Muna bhfuil agat ach pucán gabhair, bí i lár an aonaigh leis.

On the section generally, lest the Parliamentary Secretary be under any other impression, we welcome this Bill very much, especially section 2. Deputy Moore and I have taken an interest in the matter of the sale of alcohol to younger people and we would be much happier if the Parliamentary Secretary would agree to consider our proposals in this regard. It is a matter of grave concern to all of us to find that 15 per cent of those admitted to psychiatric hospitals are going in because of the consumption of alcohol. We have an obligation here to use all means at our disposal to try to protect the younger people especially. The situation is very bad now but I think it is deteriorating and no matter how small a contribution we could make it would be something. Even if it would save only one or two people from going on this disastrous road to alcoholism, it would be worth while.

The Parliamentary Secretary is as much aware as we are that teenagers aged 14, 15 or 16, especially in Dublin and the other cities, when going to matches go into supermarkets and get cider. Some of them then go underneath the stands in the football pitches and take something else with the cider and this is of even greater concern to us. Therefore, the Parliamentary Secretary should use any powers he has in this Bill and if he has not sufficient power he should, if necessary, extend those powers to control rigidly the sale of alcohol in supermarkets.

Deputy Moore and I might not agree on exactly how that should be done. I think alcohol should only be sold through a licensed vinter. Deputy Moore is of opinion that a supermarket should be allowed to sell it if they had a special compartment or department but with the tremendous volume of business in supermarkets at certain periods it is a very onerous task for the check-out girls to ensure that everything going out is going to the proper people and has been purchased by a member of the proper age group. That is why I think a licensed vinter is the only person capable of controlling this. They have been very much maligned. RTE, being conscious of the power and influence of advertising, has introduced a code of advertising in regard to alcohol but this code does not apply elsewhere. For instance, in cinemas where a considerable number of teenagers go, alcohol is openly advertised. The encouragement to consume or experiment with drinks is tremendous as a result of advertising because those who prepare these advertisements are highly skilled and highly paid. They create the demand and the urge in people to try their products. We have a very good opportunity in this Bill of taking some steps towards controlling the abuse of alcohol and I appeal to the Parliamentary Secretary, even if he cannot make a decision at this stage, that on the next Stage he should bring in some amendment which would help towards eliminating these abuses.

The proposal made by the Deputy does not arise. We are moving into a very different field, advertising and selling alcoholic drinks in shops and supermarkets and places other than public houses. As the Deputy knows, there is separate legislation governing the granting of licences for the sale of alcohol and if there is need of an amendment for the reasons suggested by the Deputy it is surely the Act governing the conditions of licences and the sale of alcohol that should be amended.

I am not positive, but I think we could make the regulation under this Bill.

Whether or not alcohol should be on sale even in a public house is not a matter for this Bill.

Is the Parliamentary Secretary suggesting that the Ministers have no power to make a regulation even about where alcohol is sold under this Bill?

I do not think that the Ministers specified in this Bill could make a regulation precluding the sale of drinks in a place where a licence has been granted for their sale unless the standards were in conflict with the terms of the Bill. They certainly could not preclude the sale of drinks if the standards were in order.

There might not be any problem if the legislation which covers the sale of alcohol in premises such as supermarkets were enforced. I am not satisfied that under this Bill the Ministers could make any regulations governing the sale of alcohol. I know the Ministers could make regulations governing the quality of it and, perhaps, the advertising of it. It might go a long way towards meeting the wishes of Deputy Crowley and Deputy Moore if large advertising hoardings were not displayed in the supermarkets to attract people to that particular section. Perhaps the Ministers involved in the Food Standards Bill would have some say there. I cannot say but I am reasonably sure that the Ministers would have the power to make regulations governing the amount and type of advertising of alcohol where it is easily accessible to youngsters and where the control is not anything as strict as on the same product when it is sold in a public house.

I suggest that in section 2 (i) the Minister would have power to make a regulation. In that section food must be presented in some specific place.

The three Ministers who may make regulations under this Act will, I am sure, take note of the points made by Deputies.

Will the Parliamentary Secretary convey to the Ministers concerned our anxiety about this section?

Question put and agreed to.
Question proposed: "That section 3 stand part of the Bill."

Section 3 states:

Not less than two months before making any regulations under section 2 of this Act, the Minister of State proposing to make them shall cause a notice to be published in a daily morning newspaper published in the State stating that he intends to make the regulations and indicating generally their subject matter and scope.

The only criticism I have of this section is that I am of the belief that the period of time, two months, may not be sufficient. If this period is not sufficient, would the Parliamentary Secretary say if the Minister involved has the power under the Bill to extend that period from two months upwards, if necessary?

The section provides that not less than two months notice be given and there is no upward ceiling. The industrial representatives on the Codex Climentarius Commission were satisfied with the two months notice. If some special case arose, it could be extended because the section merely states that it cannot be less than two months but there is no upward ceiling.

If the Minister gave the minimum amount of notice, two months, and if those affected by that particular notice made representations to the Minister, would their application for an extension of the period of time be dealt with as quickly as possible?

I have no doubt that that would happen.

The section states that the advertisement should indicate generally the subject matter and scope of the proposed regulations. In my view that phrase is vague because it could mean simply stating the matter about which it is intended to make regulations. Is it intended to publish draft regulations so that the people concerned will know exactly what is proposed or is it intended to state that the Minister, after two months, will make regulations? Will the details of the regulations be published?

The Minister will give notice that after the expiration of two months he will make regulations and there will be a sufficiency of notice given to the people concerned. It will be a matter for them to make representations within the specified period. The Minister will indicate generally the subject matter and scope of the regulations. In my view it will be quite appropriate to make representations.

Will the actual regulations be published and made known in advance or will the notice published be merely a short statement to the effect that the Minister proposes to make regulations about a particular matter?

The Minister will give notice of his intention and the section lays down clearly what the advertisement will consist of. The Minister will indicate generally what the subject matter and scope of the regulations will be. I assume that interested parties can then make representations and they will have at least two months to do so. After this, the final regulations will be made.

Will the final regulations be enforceable from the time they are made?

They will be enforceable from the date of the draft regulations.

Question put and agreed to.

The Minister proposes to delete this section. Is the delection agreed?

Would the Parliamentary Secretary explain why the Minister wants this section deleted?

The section was intended to bring food served in institutions, hospitals, boarding schools, hotels and the like within the scope of food standards regulation made under section 2. Sale for consumption is an essential element in all offences under section 2 and food is not "sold" in the normal sense of the word to hospitals though it is part of a package of services for which a patient pays. The section is copied from the Health Act of 1947. There were a lot of comments on this section during the course of the Second Stage debate. Deputy Collins, who spoke on it at some length, found it rather confusing.

It was agreed to amend section 1, as we did earlier, by in page 2, line 21, before "contractual" inserting "other".

We thank the Parliamentary Secretary for meeting our wishes.

Section deleted.


I move amendment No. 2:

In page 5, lines 48 to 52, to delete subsection (4) and to substitute the following subsection:

(4) It shall be an offence for a person to disclose information obtained in the course of entry on and inspection of premises or of a ship, aircraft, vehicle or container under this section other than in the execution of his duties under this Act or for the purpose of legal proceedings under this Act.

This is self-explanatory.

Is there any time limit on that prohibition?

It is a difficult situation.

Would the officer affected by that particular amendment be bound by the Official Secrets Act?

Yes. The main emphasis is on the desirability of confidentiality. If a man left the service he would still be bound by the Official Secrets Act. Experience has shown, of course, that public officials do not betray their trust but it is essential to have this as a safeguard. That is its only purpose.

A peculiar situation is now developing in which we will have clerical officers standing for local elections who will be looking for votes.

We had a long debate on that.

There was no debate on it in the other House.

We will not discuss the other House here.

Amendment agreed to.
Question Proposed: "That section 5, as amended, stand part of the Bill."

On the Second Stage, I pointed out that the number of potential prosecutors under section 5 (1) (a) was enormous. It could be 10,000 or more; it could be any officer attached to three Ministers, to a board of health, to a local authority, or a customs and excise officer. I do not know what the total number would be but I am sure it would run into thousands. This is a very wide category to which to give power of prosecution. I suggested on the Second Stage that there should be some provision under which the consent of some responsible senior officer would have to be obtained in order to bring a prosecution. There are many precedents for obtaining the consent of the Attorney General, for example, to a prosecution. In this case it need not necessarily be the consent of the Attorney General but it should at least be the consent of some senior official, such as the secretary or assistant secretary of a Department, a revenue commissioner or someone of that ilk. It could be the CEO of a health board or the manager of a local authority. Otherwise, there could be malicious prosecutions, particularly in rural areas where there might be some sort of personal spleen between an officer and an individual running a restaurant or shop.

Deputy O'Malley has made a very valid point in regard to the multiplicity of potential prosecutors. In order to make it more businesslike there should be just one channel of prosecution. It would be ridiculous to have officials in three different Departments bringing the same prosecution, to say nothing of the local authority and the health board. If Deputy O'Malley's suggestion is accepted there would be no multiplication of prosecutions against some unfortunate individual. We do not want a situation in which we would have myriads of inspectors prosecuting an alleged wrongdoer backed by the authority of three Government Ministers. Deputy O'Malley's suggestion would ensure that justice would be done and it would also make this legislation tighter and therefore more effective.

I can allay the fears of Deputies opposite so far as this section is concerned. The position will be far from a potential 10,000 prosecutors. It is intended that the regulations will be enforced primarily by health inspectors, of whom there will be about 150. There may be certain exceptions in the case of premises dealt with by customs and excise officers and veterinary inspectors and so on. The main point is that these officers will have to be specifically authorised to enforce the regulations and they will have to carry with them that certificate of authorisation. The official visiting a premises must produce his authorisation and, if he does not do so, he need not be admitted.

On the question of prosecution, it is felt that the man who detects the alleged offence is really in the best position to decide whether or not a prosecution should follow. A garda issues a summons if he discovers an offence is being committed or someone is doing something in conflict with the law. If reports have to be made to some senior official to discover whether or not a prosecution should lie a great deal of time and effort would be wasted. Those exercising this particular function will be of such qualifications and calibre as to render most unlikely any danger of malicious prosecutions. I cannot see that happening and if it did and if it was found to be malicious or vexatious or treated with contempt by the appropriate court or district justice, I am sure that officer would not be in business for too long.

What we visualise is in or around 150 health inspectors, all of whom may do this job, plus people drawn from the other classification of persons set down here but each one must carry with him an authorisation irrespective of what rank he holds in a local authority.

Would the Parliamentary Secretary explain to me section 5 (1) (a) (iii) on page 4?

It says:

The Minister for Agriculture and Fisheries, the Minister for Industry and Commerce or the Minister for Health may make regulations providing for all or any of the following:

(a) the enforcement and execution of regulations under this Act by—

(iii) officers of local authorities with the consent, if the Minister of State making the regulations is not the appropriate Minister for the purposes of Part II of the Local Government Act, 1941, in relation to a particular office, of the appropriate Minister for the said purposes in relation to the particular office,

Any officer of a local authority then can be specifically assigned to do this kind of job.

I know what it says here but I do not understand exactly what it entails and who are the people concerned.

The people concerned are:

Officers of local authorities with the consent, if the Minister of State making the regulations is not the appropriate Minister....

Say the Minister for Agriculture and Fisheries is anxious that an employee of a local authority should be approved for this work, naturally he would get the consent of the appropriate Minister.

But he would have that anyway because he would be one of the Ministers concerned in the regulation but supposing he was, say, the Minister for Posts and Telegraphs?

It goes on:

for the purposes of Part II of the Local Government Act, 1941,...

You must study that now. I think this is completely in order. It is taken from the Local Government Act of 1941, Part II; section 8 (2) reads:

Where, in the opinion of the Minister, the duties of a particular office or of offices of a particular class or description relate wholly or mainly to the functions of another Minister of State, the Minister may, with the consent of such other Minister, by order provide that such other Minister shall for the purposes of this Part of the Act be the appropriate Minister in relation to such office or offices and holders thereof and thereupon such other Ministers shall for the said purposes be the appropriate Minister in relation to such office or offices and holders thereof.

I interpret that as meaning that if a Minister for Agriculture and Fisheries were to appoint——

But the Minister for Agriculture and Fisheries is designated.

I know but if he were to appoint an officer of a local authority and having got the consent of the appropriate Minister he would for the purposes of that appointment, for the specifice duties that he is appointed to, be the appropriate Minister.

Therefore, the Minister for Agriculture and Fisheries, if he wanted, with the consent of the Minister for Local Government, could appoint members of local authorities to supplement the staff of the health boards who would be enforcing these?

I think the Deputy's imagination is running away with him.

We have been waiting for 10 minutes for an explanation and we are not getting it.

I cannot hammer it in any more.

I do not think the trouble is on this side, with all due respect. I think the trouble is on the other side.

This is quite clear. Most of us are conversant with this particular section of the 1941 Act because it is often invoked.

With all due respect to the Parliamentary Secretary, I would love to have a statement of what he has just said. He said that most Deputies are familiar with what this section means because it is often invoked.

I read the section from the book.

Nobody doubts the Parliamentary Secretary's ability to read at all but what he was asked for and what we are still awaiting is an explanation of section 5 (1) (a) (iii). What exactly is meant by that in simple English? Do not bother reading it from the book.

I have explained it. It is simple enough. I thought the Deputy was wiser than he is. If the Minister for Agriculture and Fisheries were to say that a clerical officer in a local authority or a health board was to carry out these duties, to implement the regulations laid down by him, he would have to get the consent of the appropriate Minister—the Minister for Health in the case of the health board and so on—and having got that consent the officer then would be working as if he were directly under the control of the Minister for Agriculture and Fisheries.

If that is so, I fail to see any ground whatever for the Parliamentary Secretary to say to me that I was allowing my imagination to run away with me. What I said then and I repeat now is that if the Minister for Agriculture and Fisheries decides that he wants officers of a local authority to enforce this Bill for him he will go to his colleague the Minister for Local Government and get his permission to enlist employees of local authorities to operate the Food Standards Bill, 1974. Is that the situation?

It is set down here——

Am I right in my assumption?

——quite clearly in the Local Government Act, 1941.

I think it is reasonably clear.

That is not good enough.

It may not be good enough for the Deputy but the Act is there. Read it.

I am asking the Parliamentary Secretary to let me know whether I am right or whether I am wrong in my interpretation of this section—that if the Minister for Agriculture and Fisheries wants additional staff to enforce this Bill he may go to his colleague the Minister for Local Government and ask him to give him staff of a local authority to increase his own staff?

It is quite clearly set down here and I will read it.


We can all read.

It says:

The Minister for Agriculture and Fisheries, the Minister for Industry and Commerce or the Minister for Health, may make regulations providing for all or any of the following:

(iii) officers of local authorities with the consent, if the Minister of State making the regulations is not the appropriate Minister for the purposes of Part II of the Local Government Act, 1941, in relation to a particular office, of the appropriate Minister for the said purposes in relation to the particular office.

Good man. And sit down again. We are back to where we started. We are all quite capable of reading what is in the Bill and reading it as well, possibly, as the Parliamentary Secretary. We are all quite capable of reading the Local Government Act, 1941, but we are still not getting to the crunch point. Are we right in thinking that this section means that the Minister for Local Government having been asked by one of the three Ministers involved, will give power to the staff of a local authority to become involved in the enforcement of this scheme? May I have a simple answer, yes or no? We do not want to listen to the Parliamentary Secretary reading verbatim from documents in front of him; perhaps he would tell us what is meant, in his own way.

An officer of a county council is under the control of Local Government and the appropriate Minister would be the Minister for Local Government. In my view it is quite easy to interpret this section. The Minister for Agriculture and Fisheries may be the appropriate Minister so far as the particular duty is concerned, but the officer is an official of a local authority and the three Ministers specifically mentioned do not include the Minister for Local Government. If he is appointed to do the job at the request of one of the three Ministers mentioned he becomes responsible to that Minister for that work.

I have got an answer at last.

The Deputy got the answer ten minutes ago.

If the Parliamentary Secretary had been given the last note he read out before he read out the 1941 Act we would not have wasted 15 minutes.

That is not so. The Deputy should not be Mr. Smart.

The Parliamentary Secretary's complete refusal to say we were right in our interpretation of the section was because he stated earlier——

The Deputy said he could not understand what I said.

On Second Stage, Deputy O'Malley mentioned that at some time there could be up to 10,000 people enforcing this. I know that is a large figure and I do not accept we would have so many but, if the Parliamentary Secretary wants us to believe that only 150 people, employees of health boards, would be involved in the enforcement of the scheme, he is deliberately misleading the House. Now that he has finally read out to us the interpretation of the section, with the agreement of other members of the Government and particularly the Minister for Local Government, there can be more than the number involved.

That is clearly set out and anyone could understand it.

The Parliamentary Secretary did not understand it until he was given a note on it. He should not try to bluff his way out of this.

I made it quite clear and it will be found in the Official Report.

The Parliamentary Secretary did not even know what it meant.

It was self-evident.

We will accept the explanation the Parliamentary Secretary has given.

Previous speakers mentioned the availability of liquor in supermarkets——

The Deputy is on the wrong section.

That section has been dealt with.

I should like to put on record that I am fully in agreement with them.

Question put and agreed to.

Acting Chairman

Amendments Nos. 3 and 4 may be taken together as they are related.

I move amendment No. 3:

In page 6, subsection (3) (b), line 26, before "order" to insert "order, if it thinks it appropriate to do so, the restoration of the food to the person from whom it was seized and".

This subsection provides that an officer who has seized food may have it destroyed and made unfit for human consumption if he gets either the written consent of the owner or a District Court order. This provision is unlikely to be used frequently because in most cases involving minor infringements of the regulations the need for seizure will not arise and prosecutions will suffice. In other cases where the food is clearly unfit for human consumption action may more appropriately be taken by the Food Hygiene Regulations administered by the Department of Health.

Amendment No. 3 provides that a District Court may make the order sought, or if it decides the food has been wrongly seized and that the owner is at a loss as a result it may award appropriate compensation to him. Both sides have a right to appeal to the Circuit Court. Deputy O'Malley raised certain points on this question during the Second Stage debate. The amendments can provide for the return of the food to the owner.

On Second Stage I remarked there was not the power to return the actual food but I also said that was not surprising because normally the food would not be in a returnable condition if one had to go to the District Court to have the matter decided, and possibly go to the Circuit Court afterwards on appeal. What may not be realised is that outside the cities of Dublin and Cork there are not daily sittings of the District Court. In fact, in many rural areas there are sittings only every two or three months. The Parliamentary Secretary may not be aware that the waiting period for appeals to the Circuit Court in Dublin is almost nine months, although it is somewhat less elsewhere. Unless the food is of a particularly imperishable character it is unlikely anyone would want it back, but it is no harm to have the power.

It appears to me from the wording of amendment No. 3 that the court might have the power to order the payment by the appropriate Minister of compensation only if it also made an order for the return of the food. I think that danger does not arise on amendment No. 4 because the words "and may" are added at the end while, for some reason, they are not added at the end of amendment No. 3.

In most cases, even if the food were improperly seized in the first instance, by the time the matter was decided the food would certainly be unfit for human consumption. There is nothing in this section about the nature of the appeals, what period of notice would have to be given, or anything like that. I do not think that the District Court rules provide, or could provide as yet, for appeals under this Act. I should like to ask the Parliamentary Secretary if it is the intention of the District Court Rules Committee and the Circuit Court Rules Committee to make rules to cover appeals under this section.

The section is set out at some length. Two amendments were accepted to meet representations made during the debate on Second Stage. There is an opportunity to appeal to the court. The timing of the hearing is a matter that cannot be dealt with precisely here. In some areas the District Court sits every day and in other areas it may sit once a week. The Circuit Court sits less frequently. I assume that the matter will be dealt with at the first available court in the district. I do not think it is proposed to have special sittings of any court to deal with this type of offence such as there would be in the case of fishery offences.

Amendment agreed to.

I move amendment No. 4:

In page 6, subsection (4) (d), line 51, before "order" to insert ", if it thinks it appropriate to do so, order the restoration of the food to the person from whom it was seized and may".

Amendment agreed to.
Section 6, as amended, agreed to.

I move amendment No. 4a:

To delete subsections (1), (2) and (3).

The purpose of the first three subsections of the section, as, indeed, is the purpose of most of the remaining subsections, is to put the onus of proof in various prosecutions on the defendant. It goes beyond just putting the onus of proof on him. If it said that and said no more, it would not be too bad but, unfortunately, it goes somewhat beyond that and says that certain matters shall be presumed until the contrary is proved, which puts a heavier onus on him than the normal transfer of onus on to the defendant. From the way it is drafted it would seem that the degree of proof which the defendant would be called on to satisfy the court with is beyond reasonable doubt. The most that should be asked of any defendant, even in these unusual circumstances, should be to create sufficient doubt about the matter to enable the court to give him the benefit of that doubt.

I know there are many instances in our law of the onus of proof being transferred to the defendant in certain cases. It strikes me that in these three instances, whatever about the later ones in the light of the proposed amendments to them, it is far too wide. A presumption is made which the defendant has to disprove in each case. It is unnecessarily wide or wider than any prosecution would reasonably require. I submit to the House that, if the prosecution has to have all these presumptions in its favour, in a particular case it would not really have sufficient evidence to warrant the taking of a prosecution on any equitable basis.

If you combine all these presumptions against the defendant and the transfer of the onus to him, and the transfer to him of the necessity to prove his innocence in each of a long series of things related to the one prosecution, you could have a situation where it is not necessary to do much more than just prove that a particular defendant was in possession of food. If you prove that, there is the presumption that it was intended for sale for human consumption. If you prove it was sold, there is the presumption that it was sold for human consumption, irrespective of the purpose for which the purchaser may have bought it.

Subsection (3) is, in many ways, the most dangerous of all, because it provides that, where anything is found on premises used for the manufacture or preparation of food, if that thing is capable of use in such manufacture or preparation, it will be presumed that it was used in the manufacture or preparation of food intended for sale for human consumption. On Second Stage I gave an example of a possible abuse of that provision. If animal food of some kind was lawfully on a premises for consumption by animals belonging to the owner of that premises—the example I gave was dog food or cat food—because it was capable of being put into food which was being prepared for manufacture, there would be a presumption, until the defendant proved otherwise, that non-human food was put in food for human consumption. It would not be up to the prosecution to prove that the defendant used it, but it would be up to the defendant to prove that he did not use it.

Anybody looking fairly at this will agree that that sort of thing is really going too far. To my mind while, perhaps, one of the first or second of these presumptions might justifiably be allowed to stand in certain circumstances, the combination of the three of them together, and subsection (4) even as amended, gives rise to a situation which cumulatively is very unfair to a defendant or a potential defendant. As long as it is proved that he had food on a certain premises, or that he sold food, everything else will be presumed against him until he can start to disprove each one.

Because my amendment refers only to the first three subsections I will not refer to the curious provision in subsection (4) about which I have an amendment down and I am happy to see that the Minister has as well. While I am glad to see that he proposes to remove at least the most obnoxious part of the subsection, I think the same should be done with regard to the first three subsections, or at least some combination of any two of them. While the first two on their own might not be that serious, the cumulative effect of the three together is very serious. I do not think, therefore, that the three together should be allowed to stand.

I would be quite prepared to amend this amendment, if that would be of any help to the Parliamentary Secretary, to include only subsection (3), if he felt he could not agree to the deletion of all three. Subsection (3) is the most serious, and cumulatively the three together are very serious.

The three subsections referred to in the Deputy's amendment are those with teeth and, in my view, a Bill without teeth is of little value. Everybody knows, and nobody better than Deputy O'Malley who is a professional at making a case for and against——

The Parliamentary Secretary is not a bad hand at it himself.

But the State, as the prosecutor, would be in great difficulties. I will take a simple case from the point of view of the ordinary man-in-the-street. Let us say a man buys a loaf of bread in a shop. He could say that the loaf of bread was not for human consumption at all. It was for the dog at home. That kind of situation could occur.

It is the seller who would be in trouble not the buyer.

Subsection (1) of section 7 says:

Where it is proved in any prosecution for an offence under this Act that a person manufactured, prepared, imported...

The seller would not be caught because he would not be selling it for human consumption. Subsection (2) says: shall be presumed, until the contrary is proved, that the food was sold for human consumption.

Now, he has the food and it is intended to sell it for human consumption. Let us say, in the case of the loaf of bread, the State would find it difficult to say that the purchaser or his family ate the bread.

That is not the point at all. It is the seller who would be liable to prosecution not the purchaser.

It is a point, as I see it, if the seller were to say that it was not for sale for human consumption. That throws an obligation, to some extent, on the defendant to prove his innocence. To my mind, many prosecutions brought justifiably may fail on technical grounds. Any one of the subsections, or a combination of the three, will not ensure that an innocent man is convicted. They will give his prosecutor a better chance of presenting his case and will throw some obligation on the defendant to give evidence in court. I am of the opinion that this type of legislation requires subsections such as the three referred to in the Deputy's amendment and which he proposes to delete. I would ask him to let those three subsections stand.

The most obnoxious of the three subsections is clearly subsection (3). That was not dealt with at all by the Parliamentary Secretary in his reply. I will give an example which I gave the last day on Second Stage when the Minister for Agriculture and Fisheries told me it was too far-fetched and could not happen. I have thought about it since and, unfortunately, it can happen. There is no doubt that it can happen. It can act very unfairly. What the Parliamentary Secretary should bear in mind is that offences under this measure, by virtue of section 9, are all summary and because they are all summary can be heard in the absence of the defendant. Some of them probably will be. It may be through no fault of the defendant that he is not present. A defendant may well never get the opportunity of giving the elaborate explanations required of him under these subsections and, in particular, under subsection (3).

The need to safeguard a defendant would be less if the case were indictable when he would have to be present at the trial and when he would have far more opportunity to deal with matters of this kind. But the Parliamentary Secretary will have to realise that a case like this could be over in two minutes because all it is necessary to prove under subsection (3) is that the premises on which the particular article was found were used either in the manufacture or preparation of food and that the article in question—which is referred to as "the thing" which is a good omnibus word and covers a lot more objects in modern legislation than articles of human or non-human consumption—would simply have to be shown to be capable of use in or for the purpose of such manufacture or preparation. There is immediately the presumption until the defendant proves to the contrary that it was used. The example I gave was valid. That is probably why the subsection was inserted. I think it was unfair to put it in because, unless the prosecution have some evidence at least against a man that he did something wrong, they should not prosecute him. It is no good for the Parliamentary Secretary to say they will not. The trouble is that they can and, therefore, one cannot be certain that it will not happen.

I do not think that the example I gave the last day and earlier today has been controverted. You could have on premises animal feedingstuff intended for consumption by animals only but which would be capable, because of its nature, of going into human food. And there will be a presumption that it was used in human food until the defendant proves that he did not use it. It may be much more difficult for the defendant to prove that he did not use it than it would be for the prosecution to prove that he did. And, unless the prosecution had some grounds for believing or showing that the animal food was, in fact, used in that way, I do not think there should be a prosecution. But, under this Bill, there can be because all that has to be proved is that the non-human food was found on certain premises. After that, the case is complete and they get a conviction unless the defendant can prove he did not use it. That can be very hard to do and it is unfair that such a heavy onus be placed on a defendant. In my view, there would have to be at least some evidence of its actual use in human food before such a prosecution could be brought. There would have to be a genuine prima facie case.

It is enlightening to hear the Parliamentary Secretary say it was necessary to put teeth into the Bill and to do that it was necessary to have those three subsections transferring the onus of proof. I can remember being here for days and nights on sections of certain Bills which proposed far less drastic reversals of the normal onus of proof than are proposed in these three subsections. I remember being kept here days and nights on end, being lectured at by Members of, amongst other parties, the liberal Labour Party about how wrong, in principle, was any such attempt in any circumstances. But we have it here on a very broad scale, indeed, in three subsections one after the other. What worries me in particular is the cumulative effect of all three because it is feasible for all three to be used cumulatively against a defendant. In other words, the onus of proof is on him on three separate points in the one prosecution. Perfectly innocent men may well find it impossible in those circumstances to discharge that onus. For that reason I am concerned about this but I am prepared to be reasonable with the Parliamentary Secretary in that I feel the third one is far and away the most unreasonable. I would be happy to see that deleted and let the other two stand if the Parliamentary Secretary cannot see his way to agree to the deletion of all three.

I think Deputy O'Malley is stretching imagination a little too far. It is not the KGB or the Gestapo who will be implementing those regulations. So far as I am concerned I feel that any qualified inspector, who finds on inspection that food in a premises may not be fit for human consumption, will discuss the matter with the proprietor and I am sure in most cases the matter will be resolved. I do not see any difficulty and I say that as a person who could be inspected under this particular regulation. If the appropriate inspector calls at my premises and he has doubt about some particular item I have for sale, whether it is for human consumption or otherwise, or, to use the terms in section 3, that anything was found on the premises used for the manufacture or preparation of food which was not up to standard, this in most cases would be resolved there and then.

In a case where the inspector is not fully satisfied and he prosecutes as Deputy O'Malley knows very well as a legal man prosecution does not presume guilt. Innocent people have been prosecuted occasionally. Prosecution in this case would be tantamount to saying that the inspector reasonably believes that this person is guilty of an offence but it will be the inspector's task to convince the appropriate justice that the person is guilty.

It will not. That is the trouble. The Parliamentary Secretary should read section 3.

On the assumption that the person is innocent, I do not see how he can be worried. He can go along to the court and tell the justice what his position is. It is a relatively simple matter.

What if he is not there?

There is an obligation on him to go there.

Not in a summary offence.

There is not a mandatory obligation in a summary offence. However, when a person is charged with an offence there is an obligation on him to attend the court unless he is precluded, through some circumstances, from doing so. This Bill is different from Bills referred to by Deputy O'Malley. This is a Bill by agreement. We are disagreeing here, as far as I can see, about the best ways and means of implementing proper food standards in this country. Some of us feel that by taking a more roundabout way we would do it better. This is not a controversial Bill. Our common objective is to ensure that we have proper food standards. We cannot attain that objective without a provision for the prosecution of offenders.

The offences here are very different to other offences.

It is the wish of the sponsoring Minister that this Bill brings about a position whereby people comply with the regulations laid down. Most of them are complying with them at the present time but this Bill will ensure that those whose standards do not comply with the regulations do so in the future. They will have to change their methods to comply with the regulations.

We have agreed to appoint inspectors and we must give them some reasonable authority and protection so far as proving offences where they think they are committed. I do not believe that the three sections, whether they are taken singly or together, will be responsible for convicting an innocent person and having him punished by the courts.

I am afraid what the Parliamentary Secretary said does not reply to the points I made. I do not think he realises what is involved. It is not a question of helping the inspector to prove the offence. If it were I would have very much less objection to it. It is a completely different thing. It is setting out that if the inspector proves some basic facts, then various other things will immediately be presumed against the defendant unless he can prove otherwise.

The danger here is that these are summary offences and the district justice is under no obligation to see that the defendant is present or is represented. The defendant has no obligation to be present. I can assure the Parliamentary Secretary that in a great many summary cases the defendant is never present. District Courts would take twice as long if they were. In a great many cases they never bothered to attend and they cannot be criticised for not attending so far as summary cases are concerned because they are not obliged to do so.

It is not a question of giving additional powers or something of that nature, as the Parliamentary Secretary stated, to an inspector. It is a question that when he proves certain basic, fairly obvious things that are quite easily proved a series of presumptions against the defendant come into effect. The onus is then thrown on him to prove his innocence. It would appear to me beyond reasonable doubt that this is not so, that it is not correct. Subsection (3) in particular is unfair because it goes beyond what most of these sort of presumptions usually extend to. The cumulative effect of the three of them together is quite serious. I am aware, for example, that it was in food and drugs legislation that this concept of transferring the onus of proof probably first arose because of the difficulty in relation to certain food and drug offences of proving a number of matters beyond reasonable doubt on the part of the prosecution.

The problems are a good deal less here because they are not as technical. The need to have this transfer of onus of proof is not at all as great. I make the offer to the Parliamentary Secretary that if he feels that he cannot accept all of this amendment that I amend it, with your permission, to apply to subsection (3) only. I feel then the most unfair part of the subsections will have been removed if that particular one is removed if not think it will put any inspector or anyone else at a great disadvantage to have subsection (3) removed.

I cannot agree with the suggestion of Deputy O'Malley. This matter has been explained at reasonable length. The need for the subsection exists. I cannot visualise a situation whereby a business man is prosecuted for a breach of the Food Standards Act and he refrains from attending court. It is all right to say that people prosecuted for offences like having no lights, unlicensed dogs and so on may find it cheaper and easier to remain away and let the justice determine the case in their absence and impose the appropriate penalty. Any businessman will take a prosecution under this Bill as a serious matter not because of the fine imposed, whether it is little or great, but because the fact that he is brought before the court under this Bill could have repercussions on his business. It is not a matter that would be taken lightly. I am reasonably satisfied that nobody will be brought to court by any of our inspectors unless there is at least a reasonable doubt.

There should be much more than that.

I cannot see how these subsections either jointly or severally can preclude a man from proving his innocence.

They do not preclude him from doing so: they make it necessary for him to prove his innocence and it is wrong that a man should have to prove his innocence. It is up to the prosecution to prove he is guilty.

If the prosecution fails at the close of the case the district justice will dismiss the charge but many such defendants may welcome an opportunity of giving their own version of what happened and making their side of the story public, not so much for the benefit of the district justice but for the benefit of the court and to set themselves right if their version is correct and factual. I see nothing unfair in these subsections particularly in a Bill of this type and I am sure that if somebody is brought to court who is innocent it will emerge clearly that this is so. I would ask the Deputy therefore to leave the three stand because they are inter-related.

Is the amendment withdrawn?


Amendment put and declared negatived.

Amendments Nos. 5 and 6 in the name of the Minister and amendment No. 6a in the name of Deputy O'Malley are related and may be taken together if the House agrees.

I move amendment No. 5:

In page 7, subsection (4), lines 22 to 24, to delete subparagraph (a) and to substitute the following subparagraph:

"(a) that he received the food as being in compliance with the regulations under the said section 2 and with a written warranty to that effect and that he notified the prosecutor of the warranty and its contents not less than one week before the hearing of the prosecution,".

This arose out of the views offered by Deputies on the Second Reading. It was considered appropriate that the Minister should put down the amendment as set down here.

Amendment No. 6 which is also being discussed states:

In page 7, subsection (4) to delete lines 30 to 32 and to substitute "the defendant shall be discharged from the prosecution."

It is reasonable that if the holder of the food has a warranty from the wholesaler or manufacturer for food that is deemed to be substandard, on production of that warranty the question of prosecution should not arise so far as the shopkeeper or the holder of the food is concerned. This is a reasonable proposal and possibly follows on the lines that Deputy O'Malley had in mind.

I am in full agreement with amendment No. 6 in the Minister's name because it has precisely the same effect as amendment 6a in my own name except that it is a rather more roundabout way of saying it. Amendment 6a would stand on its own and the value of amendment No. 6 is greatly diluted, if not removed, by amendment No. 5 because amendment No. 5 re-introduces this concept of having to give notice to the prosecutor. In the section as it stands due notice has to be given of a proposal to rely on the subsection. That, I suppose, means a day or two, depending on circumstances. Now, there is an obligation to notify the prosecution not less than one week before the hearing of the prosecution. If that is not done it is not just a question that the defendant would get off but would be liable to pay costs; without it he would not be discharged because he has failed to comply with (a), (b) and (c), as amended, in subsection 4.

Although the intention may have been good the net effect of this is to make the situation worse than it was already. Amendment No. 5 should not be moved. It negatives the value of amendment No. 6 or amendment No. 6a. If anything it makes the position worse from the point of view of the defendant because the defendant under amendment No. 5, as now proposed, will have to give not less than one week's notice of the warranty and its contents to the prosecution. Does the Parliamentary Secretary realise that "not less than one week" is seven clear days but that a summons can be served—and these are all summary offences—eight days normally before a court? If that is so the defendant is in the position that he has one day, presumably the day on which he receives the summons, to convey this information about the warranty and the contents of it to the prosecution. It may well be impossible for him to do that. I think the defendant is worse off as a result of amendment No. 5 than he was under the original section. I think the Parliamentary Secretary has negatived the value of amendments Nos. 6 and 6a. When I first saw amendment No. 6 after I had put down my own amendment and noted that it was to the same effect, I said: "That is grand." It was only afterwards I realised that amendment No. 5 reintroduces the elements at the end of that subsection which amendments 6 and 6a would remove in a way that is more detrimental to the defendant than it was before any amendment was proposed to this subsection. He can be in a very difficult position if the summons is served on him eight days before the court when he must give at least a clear week's notice of his intention to rely on this particular provision of warranty and the contents of the warranty.

Such a person may find himself squeezed for time. If the summons is served on him 12 days before the date of the court it would be difficult for him to decide how this information should be communicated because the defendant may be living a great distance away from where the offence took place and the court in which the prosecution is taking place. It has not helped the situation, notwithstanding amendments Nos. 6 and 6a, to insert No. 5. If one reads the subsection as amended one will see that it ends with the word "prosecution" and the obligation is on the defendant to prove each of the three (a), (b) and (c). A defendant will have to prove that he received the food as being in compliance with the regulations under section 2 and with a written warranty to that effect and that he notified the prosecutor of the warranty and its contents not less than one week before the hearing of the prosecution. He will also have to prove that he had no reason to believe at the time when he disposed of the food that it did not comply with the said regulations, and that the food, when disposed of by him, was in the same state as when he received it.

If a defendant proves those three things he will then be discharged from the prosecution but if he fails to prove one of them, and the one he is most likely to fail to prove is the first one, he must be convicted even though the court could be perfectly satisfied that he is not guilty. That is why I think this amendment is an unhappy one. It is only if (a) (b) and (c) are complied with that the defendant shall be discharged from the prosecution. If the three of them are not complied with—they are cumulative and not alternative—then, on a reading of this subsection as proposed the defendant could not be discharged from the prosecution even though the court is satisfied he is not guilty.

This is the kind of incongruous situation one gets in this type of legislation where everything is loaded against the defendant. A defendant who could demonstrate his own innocence but who is not able to prove one of the elements that he has to prove seven days before the court has to be found guilty even though he is clearly innocent. There may be many instances in a prosecution of this nature where a defendant cannot lay his hands on the warranty until later than the seven days before the court. Therefore, such a defendant could not prove to the prosecutor more than seven days before the court that he had this warranty but even if he produces to the court this warranty, under this subsection, as proposed to be amended, the court would have to convict him because he did not prove it more than seven days before the court.

Obviously this change was made to meet the criticism I made of the ridiculous situation that existed under the subsection as it originally stood where a man could prove his innocence and still have costs awarded against him unless he gave his evidence to the prosecutor, independently, before the court. The Minister quite properly decided to change that but I have demonstrated that in changing it he has made it worse from the point of view of the defendant. The way to rectify it is to leave 7 (4) (a) as it is and to accept amendment No. 6 or No. 6a. If the Parliamentary Secretary wishes to move No. 5 he would be better to move none of them and leave it as it was because we would have the ludicrous situation in which a man could prove his innocence but the court would be forced to find him guilty.

My interpretation is quite the opposite from that of the Deputy. In my view it is a safeguarding subsection. A food importer or a food merchant brought before the court, whether innocent or guilty suffers to some extent. Because of the fact that he is brought before the court at all and that the case is recorded against him in the Press some of his customers may say that there was no smoke without a fire and that he would not have been brought before the court but for the fact that there was something wrong with his food and it was not up to requirements.

People have been prosecuted under the existing legislation for having something in their possession which did not measure up to standards even though they had nothing whatever to do with the goods concerned which they received from a wholesaler or exporter. By virtue of the fact that the goods were found on their premises they were brought before the court. What we propose to do in this section is that if goods are found to be substandard and the merchant has a warranty indicating that the goods were up to our requirements he will not be prosecuted on production of that warrant. The offender in that case would be the person who sold the goods to the man in whose possession they were found.

It would be very unfair to prosecute a person who has such a warranty either set down on the goods or expressed in an invoice. This section enables him to produce the invoice as a warranty to the prosecution Deputy O'Malley asserts what would happen if such a person did not have the invoice in time to produce it seven days before the court. However, the subsection is quite clear in this regard. It states that it should be produced not less than one week before the hearing of the prosecution. If a person was expecting an invoice to arrive all he would have to do in such an eventuality would be to apply for an adjournment of the case. All reasonable requests for adjournments are granted.

This obligation is put on the defendant to save him the embarrassment of having to go to court at all. Once he produces the warranty he is guilty of no offence and there will be no question of a court case. Bringing a person to court, as I said, under this Bill when it becomes law would be bound to be detrimental to his prospects; it certainly would not help his business. We want to avoid bringing a man to court in circumstances in which he thought that what he was selling was up to standard but, on inspection subsequently, proved to be otherwise. I believe this amendment is a worthwhile amendment.

There are several points on which I must take issue with the Parliamentary Secretary. He says that if, at some stage, the defendant comes along and produces a warranty to the prosecutor there will be no prosecution.

That is right.

But the subsection envisages a situation in which a prosecution has already been taken.

But the prosecution would definitely be withdrawn.

It would not. I listened to the Parliamentary Secretary. Would he now listen to me?

It would be notification of prosecution.

Look at subsection (4).

If the defendant in any prosecution—

that is, therefore, where a prosecution has been taken—

for an offence under section 2 of this Act in relation to food proves—

and "proves" means there to the satisfaction of the court; it does not mean to the satisfaction of the inspector. The defendant is called on to prove to the satisfaction of the court and we go from that then to amendment No. 5:

....that he received the food as being in compliance with the regulations under the said section 2 and with a written warranty to that effect and that he notified the prosecutor of the warranty and its contents not less than one week before the hearing of the prosecution.

And we go on then to paragraph (b) of the Bill. If he proves also:

that he had no reason to believe at the time when he disposed of the food that it did not comply with the said regulations, and

(c) that the food, when disposed of by him, was in the same state as when he received it,

then, if he proves to the satisfaction of the court, after he has been prosecuted, each of these three things "the defendant shall be discharged from the prosecution...."

With great respect to the Parliamentary Secretary, he is quite in error in the statement he made that all a defendant has to do is come along and show the warranty to the prosecuting inspector and the prosecution is struck out. That is not so. It is also not correct to say that if the defendant lays his hand for the first time on the warranty, say, four days before the returnable date of the summons, the date on which the prosecution is to be held, all he has to do is ask for an adjournment and, if he is granted that, he will have shown the thing more than seven days beforehand to the prosecutor and, provided he can prove the various other things he has to prove, he will be discharged. That, in my submission, is a ridiculous situation.

If what the Parliamentary Secretary says is right—happily it is not, but let us assume for the sake of argument that it is right—one would have the situation that a man who got his case adjourned would get an acquittal, but a man who could not get his case adjourned would be convicted, even though all the facts and circumstances were exactly the same in the two cases. That is an arbitrary administration of justice of the worst kind because it may be quite simple in some areas to get virtually any case adjourned and it may be very difficult in other areas, as I know myself, to get any case at all adjourned except for the most compelling of reasons. I am afraid the situation is much more serious than the Parliamentary Secretary believes it to be. His explanation is a facile one because it is quite clear it is not just enough to waive a warranty in front of the prosecutor and that is an end of it. One has to prove three things under this subsection and may well have to prove three things under the first subsection as well. He has to prove that he had a written warranty and that he gave it to the prosecutor seven clear days at least before the prosecution. He has also to prove to the satisfaction of the court that the food when disposed of by him was in the same state as when he received it. These are facts. I have read them out from the section as proposed to be amended. If the Parliamentary Secretary looks at them, he will realise that the defendant is actually in a worse position than he would be under the section as originally drafted when I took exception to it on Second Stage. I believe that the Minister had the good intention of amending it but, in so doing, he has made it worse. All the trouble will be avoided if the Parliamentary Secretary takes my word for it and drops No. 5 and No. 6 and 6a. They are useless.

In most cases the warranty will be available on the date of inspection. If the owner of the goods can show that he acted in good faith on this warranty, there will be no prosecution so far as he is concerned. If the warranty is not available but becomes available subsequently the prosecution will be withdrawn. There is no trial at all. Such cases are not usually reported and, therefore, the man would not suffer. The only person who will suffer is the person who originally sold the goods to him. Where the warranty may not be available and the inspector is so informed, but is told that it will be produced subsequently, I have not the slightest doubt but that the inspector will wait to give the owner of the goods an opportunity of producing the warranty. The situation with regard to driving licences is analogous. If you do not have your driving licence with you, you get ten days in which to produce it.

But you are not prosecuted until after the ten days if you do not produce it.

No prosecution will arise here until after that. If the inspector is told that the waranty will be available later, then the inspector, I have no doubt, will wait until it is available. No matter from what angle you view it there is no cause for complaint.

I agree entirely with what Deputy O'Malley said. The Parliamentary Secretary appears to be confused in relation to what is before the House at the moment and I think he is introducing an element of grave and unfair hardship on the shopowner in this case. He must realise that a prosecutor does not come into a case until the person is actually prosecuted and that the dealing between the shopowner and the inspector is a dealing in the first instance. If the inspector then decides that the goods are substandard in the particular shop premises, then the inspector institutes proceedings against that shopowner. The dealings in the first instance is between the inspector on behalf of the Minister and the shopowner. If the inspector then finds that the goods are substandard he institutes a prosecution. No matter what the Parliamentary Secretary says about the warranty if the warranty is received from the supplier and the shop owner, despite the warranty, finds that the goods are substandard, it seems most unfair that the shop owner should be prosecuted.

He would not be.

According to the provisions of the Bill he must be prosecuted.

He has to prove his innocence.

He must be brought before the court, innocent or guilty, and people do not like going to court. It is one of our traits in this country that we try to avoid court proceedings as much as possible. It seems most unfair that a shopkeeper who, having received substandard goods from a supplier on the foot of a warranty, should be then brought to the court for an offence in which he has to prove his innocence. That is what the Parliamentary Secretary has said.

I think Deputy O'Malley has outlined very clearly where the unfairness and hardship comes in for the shopowner. I would ask the Parliamentary Secretary to have a serious look at the provisions before us. Although I have studied the legislation I have come in to hear the various arguments between Deputy O'Malley and the Parliamentary Secretary. I have no doubt that the Parliamentary Secretary believes his arguments but having heard the two, and I say this without prejudice, I think that Deputy O'Malley's arguments are more reasoned. The Parliamentary Secretary, being the type of man he is, will accept that it is unfair that the shop owner should be prosecuted, brought before the court despite his innocence, have to prove his innocence on the foot of a prosecution which should never have been brought at all. That is the unfairness in this legislation.

I appeal to the Parliamentary Secretary from a peculiar point of view. I came in to hear him make his reply to Deputy O'Malley. He pointed out that in the event of the defendant notifying the prosecutor of the existence of the warranty not less than a week before the hearing the reasonable inspector can withdraw the proceedings. That sounded reasonable to me until I read the section. I am mindful of the fact that both Deputy O'Malley and Deputy Andrews can see this from the legal point of view. I should like to address myself to the Parliamentary Secretary from the hob law point of view of which both of us have some experience. Deputy O'Malley also spoke about amendment No. 6 in relation to amendment No. 5 because one ties in with the other but it strikes me that the operative two lines in the full section are

If the defendant in any prosecution for an offence under section 2 of this Act in relation to food proves—

This is the usual built-in thing in a Bill. It is establishing what is legitimate defence. I am speaking without any legal experience but with some little experience of legislation and the preparation of it. The point Deputy O'Malley was making was that you have to have a prosecution before this can arise. When one studies the original section that is being deleted, compares it with the substitution and couples that with the three lines that consequently go out, it is quite obvious that when the Minister introduced the Bill he was making the point that the production of the warranty establishing that the food was received in good order was sufficient and that the defendant should be discharged from the prosecution but would have to pay the costs involved if he did not give notice beforehand that this was going to be his defence. In fact, the Parliamentary Secretary's amendment is to marry the two things together. There is no question of the inspector who in the first place found the improper foods, as he saw them, having the opportunity of withdrawing it.

When we reach subsection (4) the stage is reached where the prosecution has been brought by the Attorney General, maybe through the State Solicitor, and the defendant has actually been charged. It is legitimate defence for him to offer provided he offers it a week before the case comes up but it would have to be determined in the court. There was a stage when I would have been under the same misconception as the Parliamentary Secretary. Here is a very handy job. We have Joe Murphy summoned for having food that does not measure up to standard on his premises and offering it for sale. When Joe Murphy subsequently having been prosecuted, having been notified that he is to appear in the District Court in Thurles on a certain date sends in the warranty, his solicitor can go to court at that stage and say: "We have complied with all the business. Our food was quite in order. We have a warranty to establish it." At that stage the court has to decide. This section is here for guidance to the court and I do not think it is a question that the inspector at that stage can withdraw.

I am afraid the Deputies on the other side must be living in cloud-cuckoo land. I will repeat the provisions of the section. Where a person has goods in his premises and has a covering warranty in accordance with regulations, if the goods are found to be substandard the inspector will not prosecute him. Court proceedings will not arise in this case. I assume that in most cases the warranty would be readily available. Subsection (6) states:

Where it appears to a person enforcing a particular provision of this Act that an offence has been committed in respect of which proceedings might be taken against some person but that that person could establish a defence under subsection (4) of this section by proving that the offence complained of was due to an act or default of some other person, the person enforcing the said provision may take proceedings against that other person without taking proceedings against the first-mentioned person.

The "first-mentioned person" is the person in whose premises the goods are found. If the goods are substandard and if he has a warranty he is free. It is the person who sold him the substandard goods under warranty who can be prosecuted. Once the inspector is satisfied that it was due to a default by some other person, that person can be prosecuted in accordance with the law but no proceedings can be taken against the first person by virtue of having the warranty.

There is no question of prosecuting a man who buys goods in good faith, which are subsequently found to be substandard, and who is covered by a warranty. In this case the inspector has no power to prosecute. The regulations will be set out clearly for the enforcing officers. The inspector will inquire who was the seller of the substandard goods and any prosecution likely to arise will be against the seller of the goods, not the buyer.

The Parliamentary Secretary read out subsection (6) of section 7 but the person concerned must go to court to establish a defence.

The Deputy is stretching it. Legal men are inclined to bring people to court.

We are here to debate the matter. As Deputy O'Malley has pointed out, the innocent man has to go to court to prove his innocence. If the first-mentioned person is found to be innocent, I assume the inspector prosecutes the supplier. That seems to be a very involved process of law, a most unreasonable and unfair process.

It is a case where the inspector finds the substandard goods. We are talking about goods covered by warranty.

That is so, but we are also discussing subsection (6) of section 7. The Parliamentary Secretary has not replied to Deputy O'Malley's reasonable comments, and neither has he answered the point I have raised. There is no answer to it unless an amendment is brought in or the subsection is deleted. If that is not done we could be sitting here for a long time.

I have made the position clear as far as my side of the argument is concerned. We are not trying to prosecute people by way of this legislation. We are trying to make the legislation known to the public. In any case, I am sure that 95 per cent of the people comply with the standards already and we are dealing with a relatively small section. However, in order to measure up to international requirements and to let the buyers of our food know we have high standards obtaining here we must have this legislation.

If a person is covered by a warranty there is no question of his being prosecuted just because substandard goods are found on his premises. The same kind of situation arises for law-enforcing officers every day where they think an offence has been committed. If a valid and justifiable excuse is given, irrespective of the nature of the offence, that settles the matter. The same thing will happen here. I do not visualise many cases being brought to court because I am satisfied business people will meet all the requirements. The Deputies opposite have been living in fantasy land, telling us what will happen when this Bill is passed. I do not think anything out of place will happen.

We will come back from the fantasy land we have been in for the past few minutes. I would point out we are dealing with amendments Nos. 5, 6 and 6a, all of which arise out of subsection (4). This subsection deals with prosecutions that have been initiated and with situations arising therefrom. All this ráiméis we got from the Parliamentary Secretary about how inspectors will not prosecute people if they show indemnity is totally irrelevant. What we are talking about are situations where a prosecution has been taken, not cases where a prosecution has not been taken.

We have dealt with that three times.

We are talking about instances where a prosecution has been initiated. We are not talking about the sort of instances which the Parliamentary Secretary has been talking about recently. If a prosecution has been initiated there is only one way, so far as production of a warranty is concerned, whereby the defendant can get it dismissed. He has to prove the three things set out in this subsection as proposed to be amended. One of the things he has to prove is that he produced the warranty more than seven days before the date of the court.

Of the court hearing.

Yes. He has to prove that he produced it to the prosecution more than seven days before. It may frequently happen—and I think the Parliamentary Secretary admitted this—that the man may not get the warranty until after that time if he is waiting, for example, for invoices and warranties from abroad. This is what I think is reprehensible and the Parliamentary Secretary's plámás cannot get around it. We could then have a situation in which the warranty is produced which clears the man but, because it is not produced seven clear days before the court hearing, the court has to convict him even though the court knows he is innocent. I do not think this House should——

It does not happen of course, and no man knows that better than Deputy O'Malley.

I know it does not happen but it will happen if this section goes through as the Parliamentary Secretary proposes to amend it.

It is mandatory on the court.

It does not happen.

Thanks be to God it does not happen but it will happen for the first time ever if these proposed amendments go through.

I appeal to the people present in the House, other than the Parliamentary Secretary, who may see this point, to try to do something about it for the sake of the country and for the sake of this legislation.

I do not think the Parliamentary Secretary is taking this matter seriously enough. He is suggesting that we introduce legislation into this House for a bit of "gas" and that it will not actually be implemented. If a man is convicted under this subsection he has to prove three things. The Parliamentary Secretary's attitude is: "Well, it will not be enforced. It is there but it will not be enforced."

We believe in enforcing the law. It is you people who used to resort to that type of measure.

We know how the Parliamentary Secretary acted on the Forcible Entry Bill.

I always seem to be in difficulty when I stand up in this House. I do not wish to be contentious. We are trying to argue this on a reasoned basis. Deputy O'Malley has argued it very reasonably and the Parliamentary Secretary has accused him of being in happy-happy land, or in a fantasy land, or some such expression. That is a very unfair comment having regard to the articulate manner in which Deputy O'Malley put forward his proper point of view. The strength of Deputy O'Malley's case is quite clearly borne out by the section. If the person fails to produce the warranty seven days before the actual court hearing, as the Parliamentary Secretary said——

Did the Deputy ever hear of a case being adjourned?

Why should a man have to get it adjourned?

The Deputy is not being realistic.

There are many district justices who will not adjourn cases unless you have a very good reason.

I do not think we should be discussing legislation on the basis that, because it is bad legislation, the case should be adjourned. This provision should be expurgated from the Bill. What happens if the person comes along four or five days before the court hearing? He is still convicted under the section because he did not produce it seven days before——

He can still apply to the justice for an adjournment and many justices are reasonable men.

I come before District Justice Michael Pat Murphy and I say: "May it please you, District Justice, I am looking for an adjournment on the grounds of X, Y and Z"—"Adjournment refused." What do I do then?

That does not happen.

The district justice then has to interpret this piece of very bad law. It is a dangerous piece of legislation. The Parliamentary Secretary has said: "Well, of course it will not happen that way." It must happen that way. If it does not happen that way we should not be discussing it here. It should not be in the section. It should be withdrawn from the section. I would seriously urge the Parliamentary Secretary to take that view. We are here as Dáil Deputies legislating, not for our own joy and benefit, but for the people who put us here as public representatives. We are responsible to them as their legislators for the type of legislation which passes through the House.

The Parliamentary Secretary's attitude to the arguments put forward by Deputy O'Malley, Deputy Lalor and myself has been most unreasonable. It is a piece of dangerous unreason, if I may put it that way, for the Parliamentary Secretary to say we are in cloud-cuckooland. We are protecting the people against bad legislation and against the type of thinking which led to this type of legislation being introduced. I seriously urge the Parliamentary Secretary to reflect on the arguments made by the Opposition in the interests of good legislation.

I have explained the position at least five times during the course of this discussion and there is no need to elaborate further on it.

Before the amendment is put, could I just sum up the situation as we find it now? We have endeavoured to explain the situation to the Parliamentary Secretary. It should, of course, be the other way round, but it happens that this is what we have to do. It is a pity that that is so. We have endeavoured to explain the position. We have explained it coherently so that anybody who was prepared to listen would understand it and see that the situation is as we have stated it to be. It is bad; it is foolish; it is dangerous.

The combination of amendments here is bringing about a situation which, I should imagine, does far more than those who thought of the amendments originally intended to do. They will have a ridiculous effect and a very unfair effect. They will produce a section or a subsection which will be ludicrous. If any court is asked to enforce it, it will immediately provoke the comment: "What in the Name of God were the Oireachtas doing when they passed this law?"

We cannot put it any more clearly than we have. We have convinced everybody, with the possible exception of the Parliamentary Secretary, that what we say is correct and that this will have a disastrous effect. We cannot put it beyond that. We can only divide the House on that matter, not because we want to divide the House, but because we have a duty to do all that is legal within our power to try to stop something which is patently wrong and patently bad. There are no politics in this. It is technical. It is not worth twopence except that it is wrong in principle that this House should consciously and deliberately pass something which it knows is wrong. All I can do is draw to the attention of the House the fact that it is wrong, that there is no doubt that it is wrong and, if the House wants to put this on the statute books by people walking through the division lobbies like automatons, at least we will have done our duty and that is all we can do.

Hear, hear.

I want to reverse the argument which the Parliamentary Secretary used a few moments ago. He quoted subsection (6) as being an example of a situation in which a given shopkeeper does not necessarily have to be prosecuted for having food which does not measure up to the standard on his premises but that the person who supplied him may be prosecuted. The subsection provides "...that an offence has been committed in respect of which proceedings might be taken against some person..." He used that as the safety valve in relation to subsection (4) (a) which we are discussing. There is no question in subsection (4) (a) and the amendment that proceedings might be taken. It is a question of where proceedings are taken.

In addition to that, I find a blatant mistake in the arrangements which the Parliamentary Secretary feels he is making under this in so far as if a shopkeeper has the warranty there is no advantage to be gained by him in presenting it to the inspector in the first instance. Very often one will have a shopkeeper who is at war with the Department and the Department inspector. In this instance, if food is found to be of wrong standard and he has the warranty in his desk, he need not produce it. If the Parliamentary Secretary is right in his assessment of what is in the section, the shopkeeper who has food which turns out to be wrong but for which he has a warranty can hold that warranty until such time as the State goes through the full rigours, prosecutes him and notifies him that he is to be represented or he is charged to appear at, say, Thurles Court on such and such a date.

According to the Parliamentary Secretary, a week before that date— when the State has gone to considerable expense and carried out quite an amount of investigation—he presents his warranty saying that everything was in order when he received it. I do not think that sort of thing should be encouraged. That is the manner in which the Parliamentary Secretary presents his case. He gets off scot-free provided he is able to produce this warranty within a week of court proceedings. I do not think that is the intention. The original presentation of the Bill and what the amendment seems to be aiming at is to try to get in that defence before the actual court hearing takes place in order, I suppose, to relieve the State of the possibility of having to send in witnesses. That is the only thing it could do because the case must come up.

I would agree with Deputy O'Malley that it does appear useless for us to endeavour to point out that there is something very wrong here. I think the fault lies with the parliamentary draftsmen who presented the Parliamentary Secretary and his Minister with this legislation which is out of order.

Amendment No. 5 agreed?

The amendments were taken together.

They will be voted on separately.

Amendment put.
The Committee divided: Tá, 56; Níl 44.

  • Barry Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Bermingham, Joseph.
  • Burke, Dick.
  • Burke, Liam.
  • Cluskey, Frank.
  • Collins, Edward.
  • Conlon, John F.
  • Coogan, Fintan.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, Declan.
  • Coughlan, Stephen.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Dockrell, Henry P.
  • Dockrell, Maurice.
  • Donegan, Patrick S.
  • Donnellan, John.
  • Enright, Thomas.
  • Esmonde, John G.
  • Finn, Martin.
  • Flanagan, Oliver J.
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Griffin, Brendan.
  • Hegarty, Patrick.
  • Hogan O'Higgins, Brigid.
  • Keating, Justin.
  • Kelly, John.
  • Kenny, Henry.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McDonald, Charles B.
  • McLaughlin, Joseph.
  • McMahon, Larry.
  • Malone, Patrick.
  • Murphy, Michael P.
  • O'Brien, Fergus.
  • O'Connell, John.
  • O'Donnell, Tom.
  • O'Leary, Michael.
  • O'Sullivan, John L.
  • Pattison, Séamus.
  • Reynolds, Patrick J.
  • Ryan, John J.
  • Ryan, Richie.
  • Spring, Dan.
  • Staunton, Myles.
  • Taylor, Frank.
  • Timmins, Godfrey.
  • Toal, Brendan.
  • Tully, James.
  • White, James.


  • Ahern, Liam.
  • Andrews, David.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Briscoe, Ben.
  • Browne, Seán.
  • Brugha, Ruairí.
  • Burke, Raphael P.
  • Callanan, John.
  • Calleary, Seán.
  • Carter, Frank.
  • Colley, George.
  • Collins, Gerard.
  • Connolly, Gerard.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Daly, Brendan.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Farrell, Joseph.
  • Faulkner, Pádraig.
  • Fitzgerald, Gene.
  • Fitzpatrick, Tom (Dublin Central).
  • Gallagher, Denis.
  • Gibbons, Hugh.
  • Haughey, Charles.
  • Hussey, Thomas.
  • Kenneally, William.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Leonard, James.
  • Lynch, Celia.
  • MacSharry, Ray.
  • Molloy, Robert.
  • Moore, Seán.
  • Murphy, Ciarán.
  • Noonan, Michael.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Smith, Patrick.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Wilson, John P.
Tellers: Tá: Deputies Kelly and Cluskey; Níl: Deputies Lalor and Browne.
Amendment declared carried.

I move amendment No. 6:

In page 7, subsection (4) to delete lines 30 to 32 and to substitute "the defendant shall be discharged from the prosecution".

Amendment agreed to.

Therefore, Deputy O'Malley's amendment No. 6a falls.

Amendment No. 6a not moved.

Amendment No. 7 in the name of the Minister. Amendment No. 8 is consequential and we might debate amendments Nos. 7 and 8 together.

I move amendment No. 7:

In page 7, before subsection (6), to insert the following subsection:

( ) It shall be a defence for the defendant, in any prosecution or an offence under section 2 of this Act which relates to the transport or storage of food but does not relate to the actual conditions under which or the circumstances in which the food is transported or stored, to show that the transport or storage of the food was effected by him under a contract for services between the defendant or his agent and the owner of the food or his agent.

We know all that. Could the Parliamentary Secretary give us the reason for the amendment?

I am entitled to address the House in the manner I decide myself not in the manner that the Deputy decides. The amendment is itself explanatory.

What does it mean?

If a person is hired to transport food that is found to be substandard subsequently, if he is acting in good faith, he does not commit an offence within the meaning of the Act. This is a good defence for a defendant, that he was removing the food under contract of service and for hire. That is deemed to be a good defence and that he was in no way responsible for the condition of the food.

Could the Parliamentary Secretary explain how on the wording of the section something could relate to the transport or storage of the food and not be part of the conditions or the circumstances? Could he explain how that would be so, so that the second part of the amendment does not completely nullify the first?

I did not understand the Deputy's point very clearly.

The amendment says: "it shall be a defence for the defendant, in any prosecution for an offence under Section 2 of this Act which relates to the transport or storage of food but does not relate..." It relates to the transport or storage of food and at the same time does not relate to the conditions or circumstances of the transport and storage. Could the Parliamentary Secretary tell me what relates? When you exclude both conditions and circumstances, what have you left?

There may be different circumstances governing the transport of particular foods. One may be transported without any problem but other types of food may have to be transported in containers, such as refrigerators in order to conserve the quality of the food. Both methods can arise. In one case different requirements must be fulfilled.

Could the Parliamentary Secretary give us a simple instance of where a man could set up this defence? I am not trying to catch out the Parliamentary Secretary on words. Could he give me an instance of where this defence could arise and be effective?

I am surprised that the Deputy has so much difficulty in following this. If a person has a contract of service to remove food from point A to point B and if the food is deemed to be substandard when inspected by an enforcement officer, it is a good defence for him to say that his side of the business was confined to the haulage and that he hauled the food in accordance with the standards laid down and that he is in no way responsible for the fact that the food is deemed to be substandard on inspection.

Presumably at some stage this will be queried and a prosecution issued in which this alleged offence could be set out. This defence can only relate to the transport or storage of that food and if I start to set up a defence, immediately I do, whatever my defence might be, say, in transport the container was damaged and water got in or something like that—it does not matter what it is——

That would not be a defence.

I think that is the kind of defence I should try to set up, that it was not my fault, but then I am faced with the words of the section that I have to show that that defence does not relate to either the conditions or the circumstances in which it was transported or stored and straight away I cannot raise that defence. This does not make sense. This is not a question of trying to get words. It is a question of common sense. The Parliamentary Secretary should give a concrete case and let us see how this defence can be set up. It seems to me that whatever defence is put up the fact that it does not relate to the actual conditions under which or the circumstances in which the food is transported and stored, nothing else can be brought in if all that is excluded. In my view the Parliamentary Secretary has something to answer there.

If, by virtue of his contract, he is obliged to transport the goods in a certain way, for instance in a refrigerated van, and he does not do so and he is found by the enforcement officer not to have carried out the transport under the terms of his contract he is guilty of an offence.

He has to show that the transport or storage was effected under a contract for service between him and the defendant. The contract of service could not protect him unless it was explicit. It is hard to know what the Parliamentary Secretary is getting at in this section. He is trying to give some kind of defence on the basis that there is some kind of a contract there. It appears that what the Parliamentary Secretary wants to say is that if the defendant is transporting under a contract and is observing the terms of the contract he could not know that there was something wrong with the food, for instance food conveyed in a sealed container, and he would have a defence. Assuming that there is something like that there how can it be when you state that it must not relate either to the conditions or the circumstances under which it is transported and stored when the whole essence of the thing is either a condition or circumstances of storage? That makes this amendment a contradiction in its own terms and it seems to be nearly a factious piece of legislation, not alone one that is not understandable.

If the Parliamentary Secretary is aiming to do something positive will he tell us what it is and, perhaps, between us we will be able to do something positive and find some formula that will be an improvement on the draft before us?

Food can be transported on order of the consignor in different ways. If a person hires a transport man to take food under certain conditions and if this man fails to observe such conditions, for instance the conveyance of such food in a refrigerated van, that man is guilty of an offence. However, if such a man carries out his contract irrespective of whether the food is substandard or not, then he is not guilty.

How will that be related to the circumstances and conditions of storage?

If I hire a man to take goods in a refrigerated van and he transports them in another type of van, the enforcement officer could detect this offence.

The circumstances the Parliamentary Secretary is quoting must relate to the actual conditions under which or the circumstances in which the food is transported or stored, and if it is that it is automatically taken out by that saver.

If a contractor hired to transport food from one place to another fails to measure up to the requirements of the hirer with the result that he is found with substandard food he can be prosecuted as an offender. If he can show that he has fulfilled his contract and the conditions laid down by the hirer, he is not liable.

Would the Parliamentary Secretary have a look at the wording before the next Stage?

If a contractor does not comply with the conditions for transporting food, he is liable to be prosecuted. The offence does not relate to the transporting of food but to the breaking of regulations where certain foods have to be transported in a certain way.

Amendment agreed to.

I move amendment No. 8:

In page 7, subsection (6), line 46, after "subsection (4)" to insert "or (6)".*

Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."

While a lot of time has been spent on these amendments, one must put on record that the section, as amended, is probably worse than the section was before it was amended. I hope that in the calmer atmosphere of the Department of Agriculture and Fisheries this section will be looked at again. In particular, subsection (4) (a) of section 7 as it now stands is seriously wrong and there is no question about that. I hope that when the amended section is printed something might be done in respect of it. Subsection (3) is very unsatisfactory because of the fact that it, with three other subsections, transfers the serious onus of proof on to the defendant to such an extent that the accumulative effect of the whole four are that in many instances it may be very difficult for an innocent man to avoid being convicted. It is only right, however, that we should put on record that we are far from happy with this section. I do not know that there is much to be gained from trying to pursue the matter any further.

Question put and declared carried. Sections 8 to 12, inclusive, put and agreed to.
Title agreed to.

When is it proposed to take the Report Stage?

Next week.

In view of the very cogent arguments put forward from this side of the House by Deputy O'Malley and others and, most recently, by Deputy de Valera, even though in ordinary circumstances we would wish to give the Bill an expeditious passage, we think the Parliamentary Secretary has an obligation to the House to examine the arguments put forward by us.

All arguments will be examined.

There is need for a week's hard thinking about these very valid arguments. I am sure the Parliamentary Secretary's advisers will help him. I want to make it clear to the Parliamentary Secretary that we in no way wish to be unfair to him. Quite the contrary. The Parliamentary Secretary will have seven long days in which to reflect on our arguments and, having reflected on them, I believe he will come to the conclusion we were right in not giving him the Report Stage for another seven long days.

I shall certainly have a look at the points raised by Deputy de Valera. As far as the other matters are concerned, the position is quite clear. No doubt has been raised in my mind in regard to them. Deputy de Valera is a Senior Counsel and he says that part of a particular section does not make sense to him; we will have another look at it to see if it can be clarified further.

I thank the Parliamentary Secretary, but I should point out that I merely asked a question about one amendment. I did not understand it. He should, I think, consider the very reasonable, arguments advanced by Deputy O'Malley who made a very constructive analysis of the various amendments. We do not want to be difficult about this but I would urge the Parliamentary Secretary not to narrow it down to a wordy quibble. In court it would be important if I proved to be right, but would the Parliamentary Secretary look at the broader and more important aspects raised by Deputy O'Malley?

We cannot have a debate at this stage.

I will have a look at all the arguments and the Minister will also have an opportunity of examining the points raised and, if there is need to make changes, then those changes will be made.

Report Stage ordered for Wednesday, 22nd May, 1974.