This amendment is being taken in conjunction with two others.
Consumer Information Bill, 1976: Committee Stage (Resumed).
Debate resumed on amendment No. 15:
In page 6, subsection (3) (a), to delete lines 52 to 55, and to substitute:
"(3) (a) Any person may, at the discretion of the High Court, be granted an order by that Court".
—(Parliamentary Secretary to the Minister for Industry and Commerce.)
Amendments Nos. 15, 16 and 17 are being debated together by agreement.
I would be grateful if the Parliamentary Secretary would explain what exactly is the improvement which this amendment hopes to achieve. As the subsection stands at the moment it reads:
(3) (a) Any person may, upon giving notice of the application to any person against whom the order the subject of the application is sought, apply to the High Court for, and may, at the discretion of that Court, be granted, an order prohibiting the publication, or the further publication, of an advertisement the publication of which is or would be a contravention of subsection (1) of this section.
It is proposed to delete those words by amendment No. 15 and substitute:
Any person may at the discretion of the High Court be granted an order by that Court.
It seems to me that that amounts to the same thing. Perhaps the Parliamentary Secretary would elaborate on the subtle difference?
The difference is in relation to the notice.
The amendment in the name of Deputy O'Malley is crucial to the section. As section 8 stands at the moment it is open to any person to undertake a procedure under the section in regard to an advertisement which he does not like. One can see the dangers inherent in that situation. It is quite possible for people to take frivolous or vexatious actions in the courts. Business people, individuals or firms could, as a cold matter of business, undertake an action against a rival business concern to cause the maximum amount of trouble and difficulty or to delay a sales campaign to their own advantage.
Deputy O'Malley's amendment is trying to bring some sort of common sense into the situation. He suggests that before anybody can move under section 8 to have an advertisement interfered with they should have the consent of the Director of Consumer Affairs. It seems a very reasonable precaution. The Director of Consumer Affairs will assume a central position in consumer legislation from here on. In our general approach to this Bill we feel that he has not been made into a sufficiently important person by the legislation. However that is something that can be improved upon as time goes on. The way public opinion is moving, somebody like the Director of Consumer Affairs will occupy an important position in this area.
We believe that is would be a very valuable safeguard if the Director of Consumer Affairs had to give his consent before an action could be undertaken by a member of the public. It is not difficult to imagine how section 8 could be abused. Our society, like any other, contains its quota of cranks and persons who have their own hobby horses to ride; and this section could be abused by such people. As well as that, unscrupulous business people could use the section to seriously and unfairly disadvantage their competitors. It is reasonable to suggest that before an action could be undertaken the Director of Consumer Affairs, having looked at the situation and having assessed the merits, should give his consent.
It might be argued that this would take from the freedom of action of the courts, but I do not believe it would. I assume that anybody aggrieved by a decision of the Director of Consumer Affairs not to grant consent could appeal that decision to the courts and could seek an order of mendamus, or whatever, against the director compelling him to give his consent. Therefore, in that way, in a realistic sense it would not take from the powers, the dignity or the status of the courts, but it could serve as a useful protection and it could ensure that the provisions of section 8 would not be frivolously or vexatiously availed of by irresponsible people seeking their own interests.
In reply to the point raised by Deputy Haughey in relation to amendment No. 15, amendments Nos. 15 and 17 should be read together. The difference between the section as it stands and when amendment No. 15 is inserted is the removal of the following words:
... upon giving notice of the application to any person against whom the order the subject of the application is sought,
In combining amendments Nos. 15 and 17, the provision in relation to notice is moved down and is put in by amendment No. 17 under a separate subheading. This is essentially a drafting or presentational amendment. The change has no major legal or policy significance. It is purely to separate the statement of the right, in the first case, in subsection 3 (a) and the conditions applying to it, which are set out in subsection 3 (b).
In relation to the provision for the seeking of an injunction, an injunction may only be obtained where not the individual but the court is satisfied that the advertisement in relation to the supply or provision of goods services or facilities is likely to mislead and thereby cause loss, damage or injury to members of the public to a material degree. It is only if the applicant has satisfied the court that it is such an advertisement that an injunction would be granted. It is not simply a matter of people being able to stop advertisements just because they do not like them.
Furthermore, this provision in relation to giving an ordinary member of the public a right to seek an injunction against a misleading advertisement which is damaging to the public was recommended for inclusion in this legislation by the National Consumer Advisory Council, which gave the whole subject exhaustive consideration. I am not sure that it was a unanimous recommendation, but this council are a widely representative body and their recommendation in this matter deserves attention. If the amendment proposed by Deputy O'Malley were to be accepted, in effect it would be the judgment of one official which would determine whether or not this power would be used in any extensive way. However good or important the Director of Consumer Affairs may be, it is not desirable that he alone should be the filter through which such rights should be exercised. It is imposing a great burden on him.
In relation to misleading advertisements, there is merit in having a degree of private enforcement. One does not have to go too far to realise that many parts of our legislation can become dormant, not by reason of the will of the Legislature but by virtue of a growing administrative practice of not paying attention to certain provisions. The ability of an ordinary member of the public to go direct to the courts in respect of a matter that is contrary to the provisions of this legislation provides a barrier against a situation arising in which certain areas of advertising practice might cease to be the subject of scrutiny in the event of their being misleading. Subjects might be brought to light in this way which otherwise might not come to attention. The existence of this alternative whereby a person who publishes a misleading advertisement may be brought to task will ensure that advertisers will take even greater care to establish, before publication, the truth of their advertisements, than if they were to deal only with the director, with whom they might be able to reach an understanding acceptable to both but not in all cases in the best interest of the public.
The Parliamentary Secretary would appear to be talking about the merits of the section. Should he not be talking about the amendment?
I am talking about the merits of allowing direct access to the courts by ordinary members of the public in respect of the type of practice we are discussing. We are talking of a situation in which there would not be the necessity of seeking first the consent of the Director of Consumer Affairs. Everything I am saying is directed towards demonstrating that the requirement that the prior consent of the director be obtained is not good in terms of public policy.
Regarding the use, in a vexatious manner, of the powers of the section, I would point out that in subsection (3) (b) provision is made whereby the court may require a person making an application for an injunction to give an undertaking as to damages and to the lodgment of money in court. The courts are very jealous of their privileges and are very anxious that legislative powers not be used in a vexatious manner. If they had any grounds for suspicion that an application was vexatious it is likely that they would make a requirement for the lodgment of money so that in the event of the application being vexatious and the advertiser suffering damage as a result, there would be some fund from which he could be compensated for loss and also that by virtue of the existence of this provision there would be a barrier against a person who was not serious about the matter and who did not have real grounds for fearing that the public would be damaged to a material degree.
It should be borne in mind, too, that by virtue of the provisions of amendment No. 17, even in the case of interlocutory or interim injunctions—this is not the case in respect of this provision —in the normal course of law notice will be required to be given to the advertiser in all cases. Therefore, there is no danger of a person pulling a fast one so to speak, by the use of the powers contained in this section. I might reiterate that the undertaking as to damages, which is a powerful provision, will be useful particularly in the case of vexatious actions which might be taken by trade competitors. The introduction of a further layer of administration in the process whereby a person would have to obtain initially the consent of the director would lead to greater delay and uncertainty. It would mean that advertisements would be under a cloud for a longer time because in the first place there would have to be an investigation of the application to seek an injunction and the director would have to be satisfied that there was scientific information as to whether there was a prima facie case. During this period of uncertainty the person carrying the advertisement would not know whether he was right or wrong and when that process of investigation had been completed a similar process would have to be gone through by the courts. The section, without Deputy O'Malley's amendment, would be much more beneficial from the point of view of the advertiser in that a decision would be reached relatively quickly.
The safeguard I have outlined in relation to the lodgment of money in court and also the safeguard in relation to the requirement that adequate notice be given in all cases mean in effect that the provision will not be used in a vexatious manner and that the additional power of allowing the ordinary individual to proceed direct to the court where he can show that matter is likely to cause damage to the public is an additional strength to the legislation and will mean that great care will be taken by advertisers to ensure the veracity of their advertisements.
To take first the last point made by the Parliamentary Secretary, he seemed to be putting forward two different arguments. On the one hand he says that the provision whereby a private individual can go to the courts is something new and wonderful, something that will be of great benefit, but on the other hand he says that the onerous provision in paragraph (b) of subsection (3) whereby anybody proceeding to act under section 8 has to give a guarantee about damages will inhibit people from taking these sort of actions. What does the Parliamentary Secretary want? Is he putting forward this section on the basis that it is a great new advance which heralds a tremendous initiative in that ordinary individuals can go direct to the courts or is he putting forward the case that the penalty provisions of the subsection are very important and will prevent people going to the courts and taking actions of this kind? However, this is something about which the Parliamentary Secretary may make up his mind and then let us know which argument he is putting forward.
There are a number of matters involved in these different amendments. Perhaps it was a mistake for us to take them together but I shall try to sort them out, at least in my own mind, whatever about the debate.
The Minister's amendments Nos. 15 and 17 are designed to bring about a change. At the moment the section provides quite simply that anybody can go along to the courts and ask the courts to take certain action about advertisements which are misleading. Before doing that he must notify the advertiser of his intentions. That seems to me to be a sensible and straightforward way to deal with this. If I want to object to an advertisement and go to the courts to have something done about it, then in all fairness I must go along to the person who inserted the advertisement and tell him that I am going to court to object to the advertisement. This gives that person the opportunity to go into court and argue the case for the advertisement. That is the original section and it would seem to me to be sensible and fair, but the effect of these two amendments would change that situation considerably.
If these two amendments are adopted by the House it will mean that Mr. X can go into court and argue about an advertisement which he claims is misleading and until the judge comes to the point of making an order the person who inserted the advertisement need know nothing about it. Mr. X, the opponent of the advertisement, can have the court to himself and put forward any argument he likes, make any statement he likes, and the advertiser will have no opportunity of rebutting those arguments or statements until the judge decides that he will make an order. Surely that is a rather convoluted and complicated way of proceeding. Would it not be better if both parties were in the court from the outset so that when one man puts forward an argument the other would be in a position to rebut it? The new phraseology will mean that any individual, possibly a rival or competitor, can have the ear of the court fully to himself and the advertiser need know nothing about the proceedings. Only when the judge thinks he should make an order, an interim or interlocutory injunction can the advertiser be called upon. At that stage he is at a serious disadvantage. The judge has probably been swayed and has made up his mind to make an order. The unfortunate advertiser then has to try to undo the impression which has been formed in the mind of the judge. I see that demerit in the changes proposed by these two amendments.
I refer now to Deputy O'Malley's amendment, and I want to quote what the Confederation of Irish Industry have said in their Newsletter on the 12th April, Volume 27, No. 2. They have a very short factual statement about this piece of legislation. I do not think even they would argue that they have examined the legislation in depth but in their review of the legislation they state:
Regarding the power to stop advertisements, advertisers must be adequately protected against frivolous or mischievous actions, by consumers or competitors.
We would all accept that. Despite what the Parliamentary Secretary's socialist friends opposite may think, most business people are decent, honest, straighforward people and the vast majority will be putting in straightforward, reasonable, honest advertisements. They are entitled not to be set upon unfairly either by frivolous or vexatious members of the general public or by competitors seeking their own advantage. At the moment the section leaves it wide open for anyone to initiate one of these actions.
The Parliamentary Secretary relied very heavily on the provisions of paragraph (b). He said that the provisions of paragraph (b) would inhibit persons from taking these actions because it envisages a situation where the court would require persons to give an undertaking as to damages and lodge money in court in support of such an undertaking. That is all very well as far as it goes, but let us look more closely at paragraph (b). In general it need not necessarily inhibit a business competitor. The undertaking as to damages and the lodging of money in court might not be of any significance to a large competitor. It might be well worth their while to give the undertaking and to lodge the money in court if they could seriously interrupt or delay a sales or advertising campaign or promotion by a rival. One could imagine a situation where a campaign would have to take place in the spring for the summer trade or in the summer for the autumn trade. If a rival could succeed in delaying such a campaign it could be rendered completely ineffective because the period in question would have passed. It might be well worth while for a competitor to take such action even though he might be compelled to give an undertaking and to lodge money in court. I admit that the provisions of paragraph (b) might have an inhibiting influence on an ordinary member of the general public who might be simply riding a hobby horse or indulging his whims. In such a case the intimidatory provisions of paragraph (b) might have some effect, but I do not think they would have any effect on business people. I do not think the Parliamentary Secretary can rely on the provisions of paragraph (b) as heavily as he has done in his reply to me.
The Parliamentary Secretary seemed to infer that paragraph (b) of section 8 (3) gives the power to the court to demand an undertaking in support of which money would be lodged. It does not. Paragraph (b) states that where the court wants an undertaking it can demand money in support of that. I would ask the Parliamentary Secretary to tell us where it is stated that the court can demand such an undertaking. Admittedly paragraph (b) gives the court the power to demand the lodgment of money in support of an undertaking, but where is the power to demand an undertaking in the first place? It may be in the general power of the court. It may be something which the courts are empowered to do by virtue of the rules of court or something like that. If that is so I should like the Parliamentary Secretary to tell me, because it is not in this legislation. I cannot find in this legislation any specific power conferred on the courts to demand an undertaking in relation to the operation of section 8.
The Parliamentary Secretary said it would be undesirable that one person, the Director of Consumer Affairs, should have the power to inhibit the taking of actions under section 8. I do not think that is a very persuasive argument. The person to whom the Parliamentary Secretary refers, the Director of Consumer Affairs, is not just any old individual; he will be a statutory person with very important statutory duties. Let us look for a moment at section 9 and the sort of person he is going to be. Section 9 (5) sets out the functions of this new director and one of those functions is to keep under general review practices or proposed practices in relation to the advertising of and the provision to members of the public of information in relation to and descriptions of goods, services, accommodation and facilities. First, he will have to keep this situation under review—advertising practices, the sort of thing we are dealing with in section 8—and he will have to request persons—this is in paragraph (c) of subsection (5)—engaging in or proposing to engage in such practices that are, or are likely to be, misleading to members of the public in a material matter, to discontinue or refrain from such practices.
Here is this man, this new statutory creation and he will have this power to ask people to cease engaging in certain advertising practices which he does not like—there are no courts involved at this stage. How can the Parliamentary Secretary, who is prepared to confer that power on this director, object to him because he is just the one individual—having the power Deputy O'Malley proposes to give him? If he can tell people to cease a particular type of advertising—and of his own volition he can do that under section 9—how can the Parliamentary Secretary object to his having the right to examine one of these applications to the court and to say it is frivolous or vexatious? I think the Parliamentary Secretary is making an untenable argument in that respect. If he were to say: we cannot have any single individual given this power to stop these applications by individual citizens to the court, I would have to listen to it, but we are not talking about an individual at random; we are talking about a statutory person who already has major powers equivalent to the powers of the court under this legislation.
If I were putting down this amendment which Deputy O'Malley has put down I would go further. He is prepared to envisage a situation where a person about to take one of these actions would have the consent of the director. I would be inclined to say that where an individual member of the public or a business competitor was perturbed about a particular advertisement he would have to go in the first instance to the Director of Consumer Affairs and ask him to act and only then, if the director refused to act, would he have the right to go to the courts. That would be a far more sensible way of proceeding. Particularly when you are establishing this new creature of the statute, giving him these powers I think we should go the full distance and say that if anybody has a grievance he should first go to the director and only if he is unwilling, unable or unprepared to act, only then would one have the right to go to court. The very least the Parliamentary Secretary should accept is what Deputy O'Malley proposes, namely, that as a protection for legitimate, honest, straightforward, business people and firms, to protect them from unscrupulous competitors or from members of the public who are irresponsible or frivolous or vexatious, first the Director of Consumer Affairs should consider the matter and say whether he is prepared to let the court decide it or alternatively that there is no case and that he would not be prepared to give a certificate to go ahead with the matter, particularly because we must always recognise that even if Deputy O'Malley's amendment is accepted and even if the consent in writing of the Director of Consumer Affairs is necessary before one can go to the court under section 8, there would always be the provision under the general law that if a person is refused permission to go to court by the director he can still go to court and ask that the director be mandamused or whatever the procedure is to give the necessary consent.
There are many things involved in these three amendments. I hope I have put my viewpoint on the different aspects of them clearly to the Parliamentary Secretary and I would be grateful if he would reply to them.
The important point here is that the fact that an injunction has been sought or an application has been made for an injunction or, indeed, that the hearing of the application is in progress does not mean that the advertising must cease or should cease or would be under any pressure to cease. The advertiser is perfectly in order in going ahead with it and if it is an advertisement which, for instance, is dealing with a seasonal trade as Deputy Haughey mentioned, it would obviously be wise for him to continue his campaign in these circumstances and no doubt he would do so. He would only cease and there would only be an incentive for him to cease if an injunction had been granted. It should be realised in this context that there is nothing lost by the advertiser in going ahead with the advertisement pending the hearing. He is not likely, as in a civil action where damage might be in question, by continuing the advertisement to aggravate the offence.
But the newspapers might not accept it.
This is not a question of an offence; it is a very net issue; should the advertisement be stopped or not? The judge is not empowered to award anything to the applicant other than simply stopping the advertisement. He cannot go back and award damages against the advertiser for having continued in the interim. I believe that in most cases those concerned will continue their advertising campaigns. Far greater loss could be suffered if any other procedure were adopted. This is the most expeditious manner of dealing with the matter. If there has to be an investigation in the first place by the Director of Consumer Affairs and another investigation by the court, this will delay the whole proceedings and if there is any danger that the advertiser might feel of his own volition that he was not anxious to go ahead, that period in which he would be uncertain would be prolonged by the acceptance of Deputy O'Malley's amendment and the introduction of this further layer of consent by the Director of Consumer Affairs.
This is law which is enacted for the benefit of the whole public. To my mind it is not desirable that the interpretation of the law by the director, or by the Minister, who is the other person with the power to prosecute, as to what constitutes misleading advertisements should be the predominant interpretation at all times. It is desirable that access to the courts should exist for people who may feel the director is wrong in saying a particular advertisement is not misleading, and that he was wrong in not instituting a prosecution in that case. Such a person may hold a different interpretation which may be upheld later by the courts, while the director's interpretation, or the Minister's interpretation, might not be upheld. Such a person should have the right of direct access to the court.
If Deputy O'Malley's amendment were accepted, the interpretation of the director would be superimposed on the interpretation of the individual who might seek an injunction and, unless the director agreed with the individual's interpretation of the legislation, there would be no possibility for him to proceed to the court for an injunction. To my mind that would not be desirable. It would lead to an unduly narrow interpretation of the legislation being enshrined in future practice by virtue of the fact that the director and the Minister would be the only people who could proceed to the courts, apart from the fact that an individual could take a prosecution under the common informer procedure, which is not likely to be used to a great extent.
Deputy Haughey asked me whether I felt on the one hand this provision was a new advance and I was arguing for it, or on the other hand I was arguing that it was not as bad as all that, and the inhibitions which are there are a good safeguard. He felt I was riding two horses at once in that context. I do not believe that is a sustainable criticism, because the courts will decide in each individual case which interpretation to put on a particular application. If the courts feel inhibitions are necessary the power is there under paragraph (b) to impose the lodgment of very substantial securites and undertakings as to damages. If, in their freedom, the courts decide the matter should be heard without these provisions, in other words if they apply the former view, the idea of its being a new and valuable civil right, to the matter in a particular case, they will decide to allow the individual to proceed with the application directly to the courts, perhaps without the requirement for the lodgment of securities as provided for under paragraph (b).
Deputy Haughey asked me whether there is any statutory base for the power of the High Court to seek an undertaking as to damages. He said such a power is not provided in this legislation. That is true but, while I cannot produce chapter and verse, the provision whereby the courts may seek an undertaking as to damages is a general power, to my mind, which the courts have under the general courts of justice legislation, and there is no need to provide for their having such a power specifically in this legislation.
As we say, fair play to him, the Parliamentary Secretary has endeavoured to reply to some of the points I put forward, but I am sure he will accept he has not done so to my satisfaction. In his first remarks he conveyed to me and to the House the impression that subsection (3) (b) was a very powerful inhibitor and, because of its provisions, it would prevent vexatious or frivolous appeals under the section to the courts. When we look at subsection (3) (b) it is quite clear that it does not do anything of the sort. It merely buttresses up something we think may exist elsewhere, but we are not too sure of that.
Subsection (3) (b) talks about the circumstances where the High Court demands an undertaking about damages and suggests that the courts shall have the power, where they are demanding such an undertaking about damages to demand the lodgment of money in court in support of such an undertaking. That is all it does. It can come into operation only where the court has already decided and asked for an undertaking about damages. What I want to know is from whence derives that power of the court to demand an undertaking about damages.
We all know from reading our newspapers that district justices, Circuit Court judges and other members of the judiciary from time to time demand certain undertakings from accused persons. They are wont to use Victorian terminology in those institutions and they say: "My good man, I will be prepared to deal leniently with you if you will give me an undertaking that you will not see Miss X again." We know about that sort of undertaking. We are not quite sure whether the district justice has the statutory or legal authority to demand such an undertaking from the good man in question, but we read in our newspapers that these undertakings are sought by judges from time to time from accused persons.
I suppose these proceedings have a certain criminal tinge about them, but basically they are civil proceedings. We are envisaging a situation where a court will demand an undertaking about damages. This is a much more serious matter. The court is requiring the person coming before it to give some sort of an undertaking about damages and, in support of that undertaking, to lodge money in court —a very serious business. I want to know from whence derives the power of the High Court to demand that undertaking.
I do not believe it can exist in the Rules of Court as they stand at the moment. The Rules of Court do not know anything about this legislation because it was not in existence when the Rules of Court under which we are operating were drawn up. This legislation is creating a new situation and it would be desirable in those circumstances that the legislation itself would set out specifically the power of the court to demand this undertaking about damages.
We are talking here only about damages arising out of actions under section 8 of this Bill. This is a new situation and, therefore, it cannot be covered by any existing power of the courts in my view. I should like the Parliamentary Secretary to do one of two things: either to point out specifically to me where this power of the High Court exists to demand these undertakings, or else to agree to spell out specifically in this legislation that the High Court can demand them.
It seems very odd to confer specific power on the court in this legislation to demand the lodgment of money in support of the undertaking and not to confer the specific power to demand the undertaking itself. The Parliamentary Secretary may tell me that the power to demand these undertakings exists in the general corpus of power which the court has, but one would have thought that would have applied to the demand to lodge money in support of the undertaking. The fact that the legislation has to provide specifically the power for the demanding of the lodgment of the money seems to indicate that the legislation should also specifically set out the power of the court to demand the undertaking. I would be grateful if the Parliamentary Secretary would clear up that point for us.
The Parliamentary Secretary is on very weak ground in his attempt to keep the Director of Consumer Affairs out of section 8. He said we might get a restricted and distorted operation of the legislation if the Director of Consumer Affairs had to give the consent Deputy O'Malley demanded. That is not arguable because the Director of Consumer Affairs is central to this legislation. He is being conferred with all kinds of functions. He is being given the right to form opinions, to assess matters and to act on the basis of his assessment of situations and practices. Therefore it is not tenable to suggest that it would be detrimental to give him power to intervene in the operation of section 8.
Why should the director, who is being given wide responsibilities in consumer affairs, be by-passed in this one instance, particularly in the case of the new machinery set up under section 8? All of us must recognise that this can be dangerous. The section is valuable. It is providing a new type of machinery and the Bill would be lacking in effectiveness if the section were not included. People can go to the court and seek to have something done about misleading advertisements. In the normal course of events it will be the Director of Consumer Affairs who will deal with these matters. He has the power to ask people to stop engaging in certain advertising practices without going to any court and he also has the power to institute proceedings in the High Court. He is the central figure in the new situation being created by this legislation and he has been given farreaching powers and functions under section 9. Why it should be so serious and detrimental a matter in the Parliamentary Secretary's opinion that he should have to give his agreement for the taking of an action under section 8 is something I do not understand.
Section 8 is valuable and important. All of us realise that it is necessary to have some such machinery as this section provides, but it creates certain dangers. As I have pointed out already, the Confederation of Irish Industry have alerted us to these dangers. They have said it is important that advertisers be adequately protected against frivolous or mischievous actions by consumers or competitors, and we accept that. The section is an important new departure, but there is a danger in it. If the safeguard suggested by Deputy O'Malley were accepted we would have a very good section. It would be just as effective, but there would be the safeguard that frivolous and vexatious actions by competitors or by irresponsible members of the general public would be prevented because the Director of Consumer Affairs would have to give prima facie authority for the taking of the action.
As far as I can see, the only real argument put forward by the Parliamentary Secretary was the question of delay. He has said that if somebody does not like an advertisement in the newspapers or in the media and wants to object to it instead of walking straight into the court he will first have to go to the Director of Consumer Affairs and that that will delay him in taking action. I do not think that argument is a real one but even if it were I think it would be worthwhile that somebody in such a case would have to endure the little delay involved rather than having the gates thrown wide open to all kinds of frivolous and vexatious actions by irresponsible members of the public or by business competitors. I do not think there need be delay of any substance. The courts these days are not the most speedy and expeditious institutions we have and that is where any delay that might occur will take place.
I should imagine that once the Director of Consumer Affairs is established he will be able to deal with an application by a member of the general public in a day. He does not have to go into the merits of the application because that will be for the court to decide. He will have to look at the situation and see whether the matter on its face is prima facie vexatious or frivolous or whether it is well grounded. He does not have to give a judicial opinion; he merely has to give a prima facie view whether the matter merits the time of the court. To that extent the director will be helping in the operation of the court and will succeed in keeping from them frivolous and unimportant objections by people who are pursuing their own advantage or who are irresponsible. What we are suggesting would be a valuable safeguard to section 8 and it would take out of it the little danger that we see existing in the machinery which the section proposes to establish.
The Parliamentary Secretary did not deal with my point about the change the amendments are making—at least he did not deal with it to my satisfaction. As I see it, under the new procedure if a person wants to complain about an advertisement he can go straight into the court and he can start unfolding his tale, persuading the court that the advertisement should be stopped. The advertiser will know nothing about it until the complainant has had a full opportunity of persuading the judge as to the validity of his objection. Not hearing the other side of the case, the judge will come to the point of making an order but by that time he will have been influenced or swayed by the complainant. Surely the advertiser is placed in a disadvantaged situation if it is only at that point, when the judge is about to make the order, that he is informed? Presumably he can then try to turn round the judge's mind and get him to come to an opposite decision and not make the order. I cannot see how that is a better or fairer procedure than the procedure originally set out in the Bill.
As far as Deputy Haughey's last point is concerned, I probably did not answer it adequately originally. There might be something to be said for doing something about the point he made. According to a strict reading of the matter—although in practice I do not think it would make any difference—it is correct that the new amendment will say that an order shall not be made by the High Court for the purpose of this section unless notice of application therefor has been given to any person against whom the order is being sought. In other words, notice would have to be given before the order is made rather than before the time the judge first hears about the matter.
In practice however, one can be assured that judges will not hear a case of this nature without being satisfied that notice has been given to the other party, in view of the wording of the section. However, there might be something to be said for making that somewhat more explicit. I ask the House to accept the amendments as they stand and I assure Deputies that I will have further investigation made in consultation with my legal advisers as to whether there would be any good purpose served by changing the matter to meet Deputy Haughey's point.
Against his point there is the consideration that in some restricted circumstances, where a matter is crying out for action, the judge should at least hear the case without making the injunction before notice has been given. I cannot envisage such cases too readily and I am not sure it would be desirable that such a case should be heard, let alone decided, without notice having been given first. To that extent, while there would be something foregone in the case of extreme urgency where the judge wants to at least hear the case, I would tend to side with Deputy Haughey that it would probably be better to make that point clearer. I would not like to amend this on my feet. I would prefer to have this amendment accepted and if having consulted with my legal advisers, I can be satisfied that nothing substantial would be lost by meeting Deputy Haughey's point, I will meet it. I do not have Deputy Haughey's confidence in the desirability of conferring all power in this matter on the director, save that the applicant has the right to seek a mandamus. We must look at the wording of the amendment.
I am grateful to the Parliamentary Secretary for his reply on amendments Nos. 15 and 17. Perhaps at this stage we could get them out of the way. When the Parliamentary Secretary is considering the matter further, as he promised, will he also bear this point in mind? I meant to say this originally but overlooked it. One danger inherent in the applicant being allowed to go into court and make his case without the other party being notified is that we are dealing here with commercial operations— goods, services and so on. The complainant might have an opportunity in court of making all sorts of derogatory references to his rival's products without the advertiser having the opportunity to reply to them. This is another aspect of the matter which the Parliamentary Secretary might keep in mind when he is having another look at it. Subject to that, we can agree to amendments Nos. 15 and 17.
I would prefer to come back on this. I may not have given a perfectly correct answer in this matter because the distinction here is between making the order and having a hearing. It is possible in the extreme case I mentioned that, while notice would have been given to both parties, the order might be granted without a hearing. If that is the case the provisions of amendment No. 17 would operate to ensure that notice had been given in the first place. I am not entirely satisfied that I can speak with authority about the circumstances in which a matter of this nature would be dealt with without a hearing and it is to satisfy myself on that point that I have asked that some time be given to consult with my legal advisers.
Would the Parliamentary Secretary also keep in mind that a business rival would have the court to himself and would be able to denigrate the other person's product without any reply?
I do not think that would happen. If there was a hearing both parties would take part. However, I would prefer to consult further on the matter.
I will now deal with Deputy O'Malley's amendment. We should come back to basic principles as to what is at stake here. It is the right of an individual to go to the courts— in this case the High Court—and to satisfy the courts that a particular advertisement should be stopped because it is likely to mislead and thereby cause loss, damage or injury to members of the public. He must satisfy the courts, which are an independent body and are a good deal more judicial than the Director of Consumer Affairs, before the injunction will be granted. The only remedy he can get is an injunction that the advertisement stop or that the words used in the advertisement cease to be used. The advertisement could continue with an amendment removing the misleading part. That is all. The firm would not be prevented from coming out with another advertisement which did not contain those defects or misleading material. It would not ruin their advertising campaign for the season. It would mean merely that they would have to change the campaign to the extent necessary to ensure that it was not misleading to the public in a way which their previous advertisements had been decided to be misleading, not by the applicant but by the court, which is an independent body which will look at this matter in a very objective way. Many of the fears expressed by Deputy Haughey take insufficient account of the fact that the court will be very sparing in the use of powers such as these, to ensure that it will not be accused of being, in any sense, the assistant of vexation. It is not. Obviously it is going to be extremely careful in a matter such as this and we can have confidence that the difficulties envisaged by the Deputy will not arise because of the care of the court in a matter of this sort.
The Deputy's proposal is that rather than that the individual should go direct to the court and have the matter dealt with in a judicial manner, he should have to go first to the director to get his consent. I do not believe that the director, no matter how independent, how wide his functions, how well he is staffed and no matter how good a person he is in every way, should be the sole arbiter of the public good. That would not be a justifiable provision to make. We must bear in mind the sort of work in which he will be engaging.
Perhaps I may put forward a hypothetical situation which could be considered in this context. The director might, in the exercise of either his functions under this legislation or others subsequently conferred on him, wish to persuade, perhaps in the absence of statutory power, a particular firm to do a particular thing in one aspect of their operations in the general interest. The firm know he cannot force them to do it because, in the hypothetical matter about which we are speaking, he does not have statutory power. Given that the director has such powers—for instance, he already has power to seek codes of practice and so on which have no necessary statutory force—is it not likely that he would find himself in a position of wishing to make a deal with a particular firm to achieve a result which, in the overall, would be desirable and beneficial to the public at large?
The Parliamentary Secretary is tearing his own Bill to bits now.
Given the fact that he would be looking not at the individual case of a particular consumer but rather at the general code it might not be desirable that he alone be the person who can decide whether or not a person should take a particular firm to court perhaps in an entirely different matter, that the director should, in all cases, be interposed and be in a position to prevent the person from obtaining access to the courts.
The requirement in Deputy O'Malley's amendment is quite bald. It simply says that the director must give his consent in writing. It does not say anything about the grounds on which the director might refuse consent. It does not say that in all cases those grounds must be reasonable. It is more desirable to avoid the type of situation I posed in my hypothetical example, that the aggrieved party should have direct application to somebody who is not involved in any sense in the market place, either for his own individual good or for that of the public at large, but have direct access to the courts which are entirely independent of all these types of pressures the best of us might find ourselves subjected to in the exercise of our office in the interests of the public at large. The courts are not subject to such pressures. I believe it is better that the individual should have direct access to the court so that he may satisfy the court, in its independent judgment, that a particular advertisement is—if it is—misleading to the public to a material degree and that if he does that, then an injunction could be granted. I believe, therefore, that the interposition of this further layer, apart from the delays I mentioned earlier of consent by the director, would not serve a good purpose.
By way of general comment at the outset, I believe that when a Minister or Parliamentary Secretary starts to put forward this sort of argument—that we can rely on the good sense of the courts—he is automatically admitting the weakness of his legislation. We all know the courts are there, they are independent, that we have an excellent judiciary in whom we have complete confidence. Let us take all that for granted. We are dealing here with legislation and the courts interpret the legislation we send down to them. The Parliamentary Secretary knows as well as I do that a judge very often says: I wish the law was otherwise but what is written here in front of me says so-and-so, and I am bound by that. It is an acknowledgment of defeat to me when a Minister or Parliamentary Secretary has to start arguing that the courts will be very sensible about this; the courts will take a broad view of it; they will be very careful not to do this, that or the other. I suggest to the Parliamentary Secretary that that is no defence. We must legislate. The courts will then interpret our legislation in relation to any case coming before them.
I suggest to the Parliamentary Secretary that what Deputy O'Malley is trying to achieve here is worth while and sensible. This is a good section; hopefully it will be valuable and important but it has inherent dangers. Why will the Parliamentary Secretary not accept this simple safeguard proposed by Deputy O'Malley to make the section as near perfect as we can make it and not rely on the generality of impartiality, fairness, goodwill and so on which we believe the courts possess? Can we not spell it out in the Bill?
We continue to argue at two different points. I want to deal first of all with the one about the Director of Consumer Information intervening. The Parliamentary Secretary does himself a grievous disfavour by suggesting that the Director of Consumer Affairs we are now going to establish, a statutory person—giving him all sorts of new functions, duties and responsibilities—might be compromised in a given situation. He is already envisaging this new pristine, statutory creature——
I think the Deputy knew what I meant.
——and is crediting him with attributes of compromise, trading and free dealing. The Parliamentary Secretary should withdraw that argument. Admittedly he said it was only hypothetical but he should not even put it forward in a hypothetical context. Anyway, it will not arise. This new Director of Consumer Affairs will be a fairly powerful person. Even when he is only requesting people to do things under section 9, subsection (8) affords him plenty of power to ensure that his requests are fairly effective instruments. Therefore, there is no question of the new Director of Consumer Affairs having to wheel and deal with big business or commercial concerns in the way the Parliamentary Secretary suggests. That will not arise. He takes from the value of the legislation by suggesting it ever could arise. To be fair to the Parliamentary Secretary we will forget that suggestion was ever made.
Our amendment does not propose to give total dictatorial power to the new director. All we are saying is that instead of having this unrestricted access to the courts there should be some screening process and we are suggesting that the imprimatur of the director should be placed on the application before it gets to the court. The Parliamentary Secretary admits that would not cut out the courts completely because anybody denied the consent of the director could still go to the court and demand that the director give the necessary consent.
If the Parliamentary Secretary suggests that Deputy O'Malley's amendment is too bald and if he is prepared to accept the amendment in principle, we can on Report Stage amplify it, qualify it a little or spell it out in greater detail. Our argument is on the principle, not the wording. The Parliamentary Secretary's main argument is that we should not insert the director as an additional step the complainant would have to take. I do not know whether he is suggesting that we should not have the director interposed for the reason that it would delay matters or produce additional bureaucratic inhibition. Whether it is either, I think it would be worth while to have it as a protection, a safeguard.
Even from the point of view of the courts themselves, it would be desirable not to have anybody who impulsively feels like having a field day at the expense of the advertiser being free to do so without this precautionary provision in the Bill. The Parliamentary Secretary has agreed to take further advice on his amendments Nos. 15 and 17. We are grateful for that, but he should keep in mind that even as the two amendments are framed there can be a hearing, the complainant can attack the advertiser in court, and he should remember that the public are very sensitive about particular products. You only have to whisper that word "cancer" and you can kill a product.
A complainant has only to go to court and if he has one day to himself there without the advertiser having the right to reply, the complainant could do irreparable damage to a product. He could destroy a product before the advertiser would have a chance to catch up. Our argument is that both sides should have the right to be there at the start. No matter how the Parliamentary Secretary interprets the wording or tries to conceal the facts, if we adopt amendments Nos. 15 and 17 it will be possible for a complainant to go to court and have one or two days knocking a particular product before the advertiser will get a chance to reply. That is the unfairness of the position. The complainant would have the newspapers to himself in his attempt to knock his competitor's product. He could have a field day at the expense of his competitor who would never get a chance to catch up.
No order can be made——
Let us be clear on this. I accept that no order can be made because before making an order the judge must notify the advertiser, but the complainant will have been in court making a case and, more important, disseminating to the public all sorts of things about the product he is complaining about. In ordinary common justice it is only fair that both parties should be in court from the word go. First of all, the advertiser should have an opportunity of hearing what the complaint is and secondly an opportunity to contradict statements which he would know to be false or misleading.
I do not understand the Parliamentary Secretary's approach but I am prepared to accept that he will get further legal advice about the situation. In the meantime he should keep these aspects in mind. It is no good telling me that the order cannot be made before the advertiser is notified because the advertiser and the product could be destroyed by that stage.
I add my voice to that of Deputy Haughey. If such an application were heard even in camera, where the firm would be protected until such time as an opportunity to answer the charges had been given, it does not take the brightest person to know that any firm who wishes to damage another could get an unscrupulous person to make the complaint and go before the court and get publicity. Therefore these amendments should be looked at from the point of view of Deputy Haughey's arguments.
We seem to be getting into difficulties. In a Bill such as this there is no need for us to lay down a lot of detail about court procedure. If there was, every piece of legislation would have to contain——
The Parliamentary Secretary is changing court procedure
If we were to lay down in great detail provisions for witnesses being heard, and so on, in Bills such as this our legislation would be much greater in volume.
The Parliamentary Secretary is changing the procedure here from one to another and he must recognise that.
There is no material change involved except that a new means whereby an injunction may be sought is created. Hitherto an injunction could be sought only where damage was suffered by the party. In this case an injunction may be sought where damage, while not suffered by the party himself, is suffered by the general public. That is the innovation.
The Parliamentary Secretary's amendments are making a distinct change in procedure. The Bill states that the complainant must give notice while the amendment says he must not.
I do not know whether we are serving any purpose by going over the matter again but I have already given an assurance that I will have further investigations carried out into this matter. I do not think any purpose can be served by the Deputy underlining the fact that I intend making inquiries. I do not believe that the situation which the Deputy envisages, that one party would be heard in the absence of the other, would happen. There are already adequate safeguards to ensure it does not happen in the normal practice of the courts. However, it is in order that I may be absolutely categoric and give chapter and verse on that point that I said I would come back but there is no feeling of lack of confidence on my part. The scenario given by Deputy Haughey is imaginary and will not occur.
The Parliamentary Secretary is either giving an assurance or not.
I am giving the assurance that I will come back with chapter and verse on this matter or if I cannot I will act accordingly. The Deputy criticised me for laying stress on the fact that the court would act in a responsible manner in this matter. He felt that this, somehow or other, weakened my argument. I do not think it does. We are not talking about the creation of an offence but simply what procedures the court will adopt in relation to a particular matter. If the Deputy was criticising the wording of section 8 (1) which creates a substantive issue in the case and I were to counter him by saying that the courts would interpret that intelligently then he would have validity. However, he is criticising me on a different matter, namely, whether the court would act in a responsible manner as through their procedures for hearing cases in order that justice may be done. He was talking about their procedures as distinct from the substantive offence or the substantive matter being heard. There is a clear distinction and I am justified in making that point. Were I not to give that assurance there might be a necessity to reproduce the High Court Rules in the Bill before we could allow any case to be heard.
Is amendment No. 15 agreed to?
Subject to the assurance given by the Parliamentary Secretary.
Amendment agreed to.
Amendment No. 16, in the name of Deputy O'Malley may not now be moved because of the amendment we have just agreed to. Deputy O'Malley's amendment is addressed to a line that has now been deleted.
The Chair takes me by surprise by that ruling. The Chair's ruling is to the effect that amendment No. 16 purported to amend part of the Bill which has now been deleted but amendment No. 16 would surely be equally appropriate to the wording of amendment No. 15 as agreed by the House. In other words, the new subsection (3) (a) would read:
Any person may, with the consent in writing of the Director of Consumer Affairs, at the discretion of the High Court, be granted an order by that court.
The amendment is directed to the Bill.
Is it the position that we cannot move amendment No. 16?
That is so.
I am not unduly disturbed by that because it was my intention to put down a different form of amendment from No. 16 on Report Stage. The Parliamentary Secretary has said that the wording of amendment No. 16 is a bit bald and we will present him on Report Stage with a more suitably worded amendment.
Amendment No. 16 not moved.
Amendment No. 17, in the name of the Minister, has been debated with amendments Nos. 15 and 16.
I move amendment No. 17:
In page 7, subsection (3), after paragraph (b), to insert the following paragraph:
"(c) An interim or interlocutory order shall not be made by the High Court for the purposes of this subsection unless notice of the application therefor has been given to any person against whom the order is sought.".
That amendment is agreed to on the assurance given by the Parliamentary Secretary.
Amendment agreed to.
In connection with amendment No. 18 in the name of Deputy O'Malley I should like to state that amendment No. 42 is related and I suggest the House debate amendments Nos. 18 and 42 together.
I move amendment No. 18:
In page 7, after line 6, to add a subsection as follows:
"(4) When an order has been made by the High Court under subsection (3) (a) of this section, the Director may order, if he thinks it necessary, the publication of corrective advertising, to the extent he thinks appropriate, at the expense of the original advertiser and may recover the cost thereof as a simple contract debt."
Perhaps the Parliamentary Secretary, at a later stage, will indicate the way amendment No. 42 is related to amendment No. 18. The purpose of Deputy O'Malley's amendment is clear. He wants to add on a new subsection to section 8. That section at present consists of subsection (1), the principal subsection indicating that a person shall not publish misleading advertisements and subsection (2) makes it an offence to contravene subsection (1). Subsection (3) (a) and (b) deals with the procedures to be followed under section 8. Deputy O'Malley wants to go on and add another subsection which states:
(4) When an order has been made by the High Court under subsection (3) (a) of this section, the Director may order, if he thinks it necessary, the publication of corrective advertising, to the extent he thinks appropriate, at the expense of the original advertiser and may recover the cost thereof as a simple contract debt.
Here we have the situation where some person, company or firm inserts an advertisement in relation to the supply or provision of goods, services or facilities which misleads and causes loss, damage or injury to members of the general public. That is expressed by subsection (2) to be an offence and subject to the penalties laid down elsewhere in the legislation. Deputy O'Malley wants to go a little further to try to ensure where a misleading advertisement has been published and where the court has found in effect that the advertisement has been misleading that under the provisions of subsection (1) the director can at his own discretion order the publication of some corrective advertising to undo the damage done by the misleading advertising. That, in my opinion, is a reasonable suggestion. Where the original advertisement has been found to be misleading it is surely only right that something be done to repair the damage. Section 8 will ensure that a person who publishes a misleading advertisement can be stopped from continuing publication and can also be fined. That is all right as far as it goes, but we must recognise that with the power of the modern advertising media great damage can be done by misleading advertising. The public can be seriously and grievously misled and, even though the person concerned is stopped from continuing to put in the advertisement and fined, the damage that has been done could still remain and there could be circumstances—it is not difficult to envisage them—in which it would be entirely desirable that some corrective mechanism be undertaken and that is what we want. That is what Deputy O'Malley wants. He wants to give the director the power to undo the damage in the public mind that a misleading advertisement has created. He also wants to ensure that the Director of Consumer Affairs has the authority to take this corrective action at the expense, and rightly so, of the person who originally caused the damage. I think the suggestion of Deputy O'Malley's is a reasonable one. It would help to improve the effectiveness of section 8 and I recommend it to the House.
Amendment No. 18 is confined to corrective advertising solely where injunction proceedings have been used and an order made by the High Court. Amendment No. 42 deals with the possibility of corrective advertising being inserted by the person against whom criminal proceedings have been taken in the normal way by either the Minister or the director. It is not a case of injunction proceedings which have no criminal import. I believe the type of situation covered by amendment No. 42 is far more likely to be the usual one rather than the type of situation envisaged in this amendment. This requires a private individual or some such person seeking an injunction rather than criminal proceedings and, secondly, it requires that that injunction be granted. I believe amendment No. 19 would constitute an open-ended danger for the person against whom an injunction was being sought. Whereas the result in the form of an injunction is clear and net, the result of an injunction plus the requirement in this amendment that the director, an official and not a judicial person, could of his own volition seek the insertion of corrective advertising—and there is nothing said as to how much corrective advertising —is a different matter. He could impose a huge financial burden on the person who had his advertisement changed in a relatively minor respect as a result of an injunction being granted by the High Court. The director could conceivably impose a very substantial burden on such an individual by requiring very extensive corrective advertising disproportionate to the extent to which the public had been misled. That is the power it is here envisaged the director would exercise in his own competence, and he would be able to recover the cost. The cost could be very substantial and would not necessarily be known even at the time he made his decision. This power could be exercised in an arbitrary manner and the amendment would make any danger there might be in the injunction proceedings far more serious because it would have as a consequence the possibility of this sort of corrective advertising being imposed. That would be dangerous.
I do not accept that the appropriate thing is to wait until the court has decided and then impose the requirement about corrective advertising. It is possible the court order might be formulated in a particular way and might not be sufficiently precise. The possibility is that an individual could get around it and actually use the court order to comply with the letter but not with the spirit of the law. An advertiser could say that what he said in a previous advertisement was wrong and then go on to make a big issue about something else. In that way he could use the court order as a means of publicity and gain rather than lose by it. This has happened in some other countries where this sort of subsequent requirement after hearing and penalty has been imposed, and there is no comeback even if the court feels the order has not been properly complied with.
Amendment No. 42 is designed to ensure there is a comeback in that the advertiser can decide on his own initiative to insert a corrective advertisement and then plead in court that he has done so and by so pleading seek mitigation of the penalties. The court in that case would have full freedom to decide whether or not the corrective advertising was adequate and clear and seeking in good faith to correct the wrong that may have been done or whether it was merely a case of wriggling out without necessarily ensuring the public mind was in fact corrected in the impression that may have been created initially.
Deputy O'Malley's amendment calls for the Director of Consumer Affairs to move whereas the Minister leaves that entirely to the court.
A different set of circumstances.
That may be, but it seems to me we are evolving here an office without very many teeth. If the office is to be developed effectively then more confidence will have to be placed in the Director of Consumer Affairs. With his experience as time goes by he will be in a better position than even judges in the court to assess the penalty that should be meted out to the person who is found guilty of abusing the advertising code.
Amendment No. 42 reads:
When considering what penalty (if any) under subsection (1) of this section is appropriate to an offence, the Court may take into consideration any advertisement published by or on behalf of the person convicted of the offence and correcting any misleading advertising, or any false or misleading description, statement or indication to which the offence relates.
I want to suggest that that amendment could be improved by changing it to read: "published or undertaken to be published". The amendment as it stands is very restrictive. It can only come into operation before the penalty is imposed. That would seem to mean that the correction would have to be published while the proceedings in court were under way. It could also mean of course that the judge hearing the case could postpone coming to a decision about the penalty to be imposed so that the accused person would have the opportunity of publishing this corrective advertisement envisaged in the amendment. Surely it would equally meet the case and give a great deal more flexibility to the court if the terms of the advertisement could be submitted to the court and the accused person could undertake to publish it within a certain period. The effect of the amendment as worded would be that the person who is going to be penalised would have to put in the advertisement during the course of the proceedings, and I do not think that would always be a satisfactory way of dealing with the situation.
Perhaps it would be better if the amendment offered the alternative of the accused submitting the advertisement to the court, which he would undertake to put into the papers or publicise in a week's time or on a certain day or something of that nature. The Parliamentary Secretary said the amendment had been very carefully drafted. I am not so sure that he can make that claim for it, because it does seem to have this restriction inherent in it, that the advertisement must be published before the fine under section 17 is imposed.
Let me look back to Deputy O'Malley's proposal. For my own part, I would be quite prepared to substitute "the Court" for "Director" in amendment No. 18. No doubt the House could make that alteration in the amendment verbally here if it so wished. I do not think the Parliamentary Secretary has argued very persuasively against the director having this power, because he has similar powers set out under section 9. The Parliamentary Secretary shakes his head in what I take to be contradiction of what I am saying. However, the Director of Consumer Affairs seems to have very wide powers under section 9, powers equivalent to what Deputy O'Malley is proposing to confer on him in this amendment, as the Parliamentary Secretary will see if he studies the words of subsection (7):
The Director may do all such acts or things as are necessary or expedient for the purposes of the exercise of his functions under this Act.
I would certainly interpret that to mean that he has the power to direct persons to publish advertisements. The Parliamentary Secretary's attitude to this new director is very ambivalent. On the one hand, he has built this legislation around him. If you take this Director of Consumer Affairs away, this legislation means nothing. It is all hung out of this new statutory creature, the Director of Consumer Affairs. On the other hand, any time he argues a point here, the first thing the Parliamentary Secretary does is either to denigrate this new statutory creature or else refuse to trust him in certain situations. May we please ask the Parliamentary Secretary to make up his mind? Is he putting this new office before us as something important, beneficial and worth while, which is going to perform a useful service, or is he completely mistrusting him before he even gets into operation?
If the Parliamentary Secretary bases his whole argument against Deputy O'Malley's amendment on the idea that this power has been given to the director, then I am quite prepared here and now, with your permission, a Cheann Comhairle, to substitute in the second line of amendment No. 18 "the Court" for the word "Director", if that would make the amendment acceptable to the Parliamentary Secretary. I cannot see what objection there is to this proposal. A situation is envisaged under section 8 where some person or firm misleads the general public by means of an advertisement and that offence, that act of misleading, is established in court. Deputy O'Malley's amendment would only come into operation where the court has found in effect that an offence had been committed under section 8 whereby the public had been misled, and Deputy O'Malley wants to go on and say that in those circumstances it is only right and proper that some form of correction should be made and that the general public should be informed that what they were told in this advertisement last week or last month was misleading, to disregard it, not to act on the basis of what was said, not to buy or use the product in a certain way. Deputy O'Malley wants the situation to be put right. He wants the damage that has been done to be undone, and I think that is a perfectly fair procedure.
The Parliamentary Secretary, in opposing this amendment, is on very weak ground in this way. If he was saying that corrective advertising was useless, that there was no point in it, that it was an idle exercise, then he would have some case against what Deputy O'Malley is proposing. However, he is not saying that. He himself, in his own legislation, by his amendment, No. 42, is accepting the value of corrective advertising. In amendment No. 42 he is saying that the court can decide to mitigate a penalty if the person who has committed the offence has put in some form of corrective advertising undoing the harm done. A court can take that into account and can fix the penalty which it is going to impose by virtue of the fact that the corrective advertisment has appeared. The Parliamentary Secretary, his Bill and his amendment recognise that corrective advertising has a useful function to perform. He cannot be against corrective advertising in principle because he is proposing it himself. Therefore, what objection is he left with to Deputy O'Malley's proposal? I cannot see what valid objection he can have if Deputy O'Malley's corrective advertising can come into operation only when it has been established in court that the advertisement has been misleading.
I am prepared to substitute "court" for "director" if that would meet the Parliamentary Secretary's objection to the director having this power. Corrective advertising, on the Parliamentary Secretary's own admission and action, is a valuable thing. What objection, therefore can he have for this procedure being incorporated into section 8?
There is no ambivalence in any attitude to the director. In all such legislation every public official in the exercise of his duty should be subject to sufficient checks and balances to ensure that he does not exercise his power in an arbitrary fashion.
To talk about the procedure is not useful.
I am talking about my own genuinely held conviction in relation to this sort of legislation, and there is no ambivalence whatever in relation to it. In so far as amendment No. 18 is concerned I believe that the powers contained in section 8 (3) for courts to grant an injunction are sufficient and adequate if we add "in addition to the power of the court" simply to stop the advertisement. With Deputy O'Malley's amendment or Deputy Haughey's amendment to that amendment, a further consequence might ensue, namely that corrective advertising of unknown cost and extent might be inserted by the court or by the director and as well as finding himself stopped from going ahead with the existing advertisement, the advertiser might find himself having to pay for very expensive advertising which was inserted by somebody else subsequent to the proceeding. The very substantial cost perhaps would be tantamount to adding to the simple injunction proceeding, which would just stop the advertisement, what would be equivalent to a very substantial fine because he would have to pay for this corrective advertising. That would make the provisions of section 8 (3) potentially unduly onerous in terms of cost for advertisers who might be the subject of these proceedings.
There is provision in amendment No. 42 for corrective advertising, but that is corrective advertising inserted voluntarily by the advertiser when he has received notice that proceedings are being taken against him. He decides to put in the corrective advertising to an extent that he himself thinks he can afford. Then he comes along to the court and says "This is what I have done. Are you prepared to accept this at least in partial mitigation of my fine?" The court will be prepared to look at the advertisement and say yes or no and mitigate or not mitigate the fine.
There is another particularly important matter in the context of corrective advertising, the matter of time. The sooner the corrective advertising is inserted after the original advertising the better. Amendment No. 42 ensures that the advertiser will have an incentive to insert this corrective advertising immediately he receives notice that the proceedings are being taken against him. The judge when he subsequently comes to hear the case will probably take into account the speed with which the advertisement was inserted.
He has to take it into account. "May" in that sense is a bit partial.
I will not go into that. The court can take into account the speed with which the advertising was inserted and, therefore, its effectiveness in real terms. If, as is suggested in both amendment No. 18 and Deputy Haughey's suggested amendment to amendment No. 42, one were to wait until after the matter has been determined by the court there has been, by definition, greater delay because the time taken for the proceeding, whether it be an injunction proceeding or a criminal proceeding, will have elapsed and perhaps the public will have forgotten the original advertisement or they will have during that lapse of time bought goods on a substantial scale as a result of the advertisement which is a subject of criminal proceedings of which they are unaware.
It is far better to confine the option in relation to corrective advertising to advertising inserted before the court hearing because then there is the incentive—a real incentive—for the advertiser to put in his corrective advertisement quickly where it will have most effect and where he can plead to the court that it had most effect, rather than allow him the option of doing nothing about it and allowing the damage to continue to be done, and then have him coming to court when it is probably too late and saying "I am prepared to insert this advertisement" and the court will consider whether or not to accept that.
To sum up, corrective advertising to be effective must be quick and the procedure in amendment No. 42 provides exclusively for relatively quick corrective advertising. We should concentrate on that sort of corrective advertising rather than opening up all sorts of other options which in the case of amendment No. 18 complicate and make more onerous the injunction proceedings and which in the case of amendment No. 42 would provide an option for the accused party so that instead of putting in a quick advertisement which would be effective, he would wait for the court hearing and then make an offer which, while it might be formally all right as far as the court was concerned, would be of little benefit to the consumer.
The Parliamentary Secretary held amendment No. 42 to be a very careful draft and he has just now given his interpretation of amendment No. 42 to mean that the offending advertiser could have put in the advertisement before court proceedings took place.
On receipt of the notice of prosecution but before the hearing.
Yes, before the proceeding took place.
Before the issue of notice of proceeding.
The gist of what the Parliamentary Secretary is saying was the value of amendment No. 42 and the procedure outlined in it was that before the case was explored in court the offending advertiser would have to put in an advertisement. This is probably not possible under the wording of amendment No. 42 as it stands, because amendment No. 42 speaks about an advertisement published by or on behalf of the person convicted of the offence. How can somebody convicted of an offence put in an advertisement before the proceedings are heard? It seems quite clear from the wording of amendment No. 42, carefully drafted as the Parliamentary Secretary has told us, that it only refers to an advertisement put in by an offending advertiser who has already been convicted and who is awaiting the imposition of the penalty by the judge. That is what any ordinary person reading amendment No. 42 would think. Amendment No. 42 reads:
When considering what penalty (if any) under subsection (1) of this section is appropriate...
The opening words in the amendment are to the effect that a judge has heard the case, has come to a decision, and is considering what penalty he is going to impose.
... to an offence, the Court may take into consideration any advertisement published by or on behalf of the person convicted of the offence.
That can only envisage the person having been convicted and then proceeding to put in the advertisement. From that point of view the Parliamentary Secretary's whole argument falls down. The Parliamentary Secretary's argument about the value of the procedure set out in amendment No. 42b, that it means that the advertisement be put in before the case is heard at all, is just not applicable. Anyway, the Parliamentary Secretary is a bit naïve if he expects recalcitrant advertisers to rush in with corrective advertising before the case is heard. They would be automatically admitting their guilt and there would be no need to go ahead with the court proceedings. That is a patently absurd argument to put before us and it is prohibited by the wording of the Parliamentary Secretary's amendment which clearly envisages the advertisement being put in by the convicted person not by a person who is awaiting the hearing of the case.
Only a convicted person can seek the mitigation of a penalty. A penalty is not imposed until one is convicted and it is in that sense that it should be read.
I am reading it as I find it.
I am sorry, I did not mean to interrupt the Deputy.
I am quite prepared to have exchanges across the House because it is a valuable procedure when we are trying to improve badly drafted legislation. Any normal person reading amendment No. 42 as put before us would take my interpretation. I will ask my colleague, Deputy Briscoe his opinion. Amendment No. 42 reads:
... any advertisement published by or on behalf of the person convicted of the offence...
That means that the person must have been convicted by the court and only then can the advertisement be inserted.
Does Deputy Briscoe agree with that?
I do, that is my interpretation.
I do not agree.
The Parliamentary Secretary is guilty of another minor misinterpretation of what is involved here. The Parliamentary Secretary seems to think that Deputy O'Malley's amendment No. 18 inserting a new subsection (4) is related only to subsection (3) of the existing section. It is not. Deputy O'Malley only brings in the making of an order under subsection 3 (a) of the section to establish that the offence has been established. The Deputy could have used some other words about where a person has been found guilty under subsection (2). Subsection (4) is a new subsection standing on its own, a new part of section 8 as a whole.
The Parliamentary Secretary endeavoured to say that this new subsection (4) will only have effect because of subsection (3) (a). It will not. It will relate to the operation of section 8 as a whole and it can only happen if a person has been found guilty under subsection 2. Subsection (3) (a) cannot operate unless the person is found guilty under subsection 2 and therefore the new subsection (4) relates to an offence being committed and the person being found guilty of that offence. It is not an extension of subsection (3) (a), it is a separate independent mechanism for correcting a harm done. In that regard it is quite reasonable.
There is very little difference between the Parliamentary Secretary's approach in amendment No. 42 and Deputy O'Malley's approach. Both want corrective advertising and both envisage that corrective advertising be an expense of the offending advertiser. Both envisage an offence having been committed and the person having been convicted of the offence before the advertisement is inserted. Amendment No. 42 will only have effect if the person has been convicted and is about to be fined. Both amendments are moving along parallel lines. The Parliamentary Secretary is putting his corrective advertisement amendment into the penalty section, whereas Deputy O'Malley wants to put it into the original misleading advertisements section, section 8. Deputy O'Malley's is a better amendment because no matter what the Parliamentary Secretary says, amendment No. 42 is very restrictive. In operation amendment No. 42 will only permit a corrective advertisement being inserted between the conviction and the imposition of the penalty. It does not envisage any other time for the advertisement.
Because there is so little difference between the two amendments I am quite prepared to proceed in a different way and to reconcile our differences. I would amend amendment No. 4 to substitute "court" for "director" or alternatively if the Parliamentary Secretary would be prepared to make his amendment No. 42 more specific and indicate in it that first of all the advertisement could be published after the imposition of the penalty—it could easily be framed in such a way that the advertisement could be agreed by the court to be published at some future date which would also have to be agreed—and secondly to spell out quite clearly that the cost of the corrective advertising would have to be borne by the offending advertiser. That is not clear from amendment No. 42 as it stands. It is inherent in it but it is not quite clear.
If the person inserts the advertisement himself, I assume he will pay the cost and amendment No. 42 only envisages a situation where he would insert the advertisement himself.
It says "published by or on behalf of the person convicted". He could get an associate company to put in an advertisement.
It is either himself or a person on his behalf who pays the costs not the public.
Amendment No. 42 says "by or on behalf of the person convicted of the offence". However, these are minor differences. Both amendments are directed towards the same end, towards the purpose of having corrective advertisements published, having the original offender pay for the corrective advertisement and only coming into play where there is a conviction for an offence. These are the three elements that the two amendments have in common. Personally, at this stage, I should prefer Deputy O'Malley's approach: to put the necessity for corrective advertising into the section which creates the offence in the first place and not into the penalty section.
I hesitate to differ with Deputy Haughey in relation to the interpretation of statutes or in relation to the meaning of language but it is clear that amendment No. 18 is confined solely to the circumstances created by the exercise of the powers conferred by subsection (3) (a). If Deputy O'Malley intended that to extend to circumstances which might arise under, for instance, subsection (2), he would have so stated. Therefore the amendment is confined solely to the circumstances in which the High Court had granted an injunction, and an injunction is not a criminal sanction. An injunction is granted to one civil party against another civil party.
That could only happen in the event of subsection (1) being contravened.
There are independent proceedings involved. For a criminal offence to be proved in court, criminal proceedings must be taken. If, on the other hand, what is taken is essentially a civil action and if it transpires that in the course of that action—as will be the case in a situation where the court granted an application under subsection (3) (a)—that an offence has been committed, there would have to be independent criminal proceedings before the case would become a criminal offence. Also there would have to be an independent hearing. The High Court hearing of the injunction would not in itself create the offence. The circumstances whereby criminal proceedings could be taken might have pre-existed. Therefore I submit that amendment No. 18 is confined solely to the provision of subsection (3) (a) and not to the generality of misleading advertising.
I would not agree with Deputy Haughey's interpretation of amendment No. 42. The amendment would come into play in the sense that the question of the mitigation of penalties would arise subsequent to a conviction, but that does not mean that the misleading advertising had been published long before the hearing of the case.
Obviously a situation in which the mitigation of a penalty would be in the process of being considered by the court would arise only in a case in which somebody had been convicted of an offence since it is only after conviction that a decision on penalty would be taken. The use here of the term "convicted person" does not mean that corrective advertisements can be inserted only after the conviction. It means rather that consideration of the mitigatory relevance of the corrective advertising, whenever it might be inserted in the papers, would be considered only in the context of a penalty. In other words, its relevance would be considered only after the offence has been proved although the advertisement could have been inserted at any time subsequent to the person concerned realising that he had committed an offence by reason of a previous advertisement.
It is much better to have a provision whereby the party concerned should have one option only in relation to corrective advertising, that is, to publish the corrective advertising as soon as possible after the realisation that an offence has been committed— a time at which it would be most likely to have effect—rather than to wait until after either an offence had been proved or there had been proved the grounds necessary for granting an injunction. Such a process might not be completed for up to 12 months after the offence had been committed. In the event of such delay the corrective advertising would be unlikely to be of any real value to the consumer. Consequently the advertiser's option should be narrowed exclusively to inserting the corrective advertisement at the nearest date possible prior to the hearing. That is the purpose of amendment No. 42.
The Parliamentary Secretary is hanging much of his argument on the question of the immediate insertion of corrective advertising. I suppose there is a great deal to be said for having corrective material published as quickly as possible, but on the other hand there could be circumstances in which it would be more effective to wait for a while. For instance, advertisements published in the month of August are not as effective as advertisements published, say, in September. Therefore I would ask the Parliamentary Secretary not to go overboard on this point. Indeed, he goes further in suggesting that the corrective advertisements be inserted before there is conviction. The bulk of his argument was that it would be very desirable that recalcitrant advertisers insert advertisements immediately on becoming aware that an action was to be taken against them. Very few, if any, advertisers would be prepared to do that because to act in such a manner would be to admit that there had been an offence. They would not be so foolish. Most of the cases will be arguable cases, with one side arguing that material is misleading and detrimental and the other side arguing to the contrary. Consequently the Parliamentary Secretary's argument is unreal. Apart from that, such practice would not be on so far as amendment No. 42 is concerned.
To my mind amendment No. 42 clearly restricts the insertion of this corrective advertisement to a period of time between conviction and imposition of penalty. Only an advertisement published by or on behalf of a person convicted can have any effect under amendment No. 42. From an ordinary reading of the wording that means that a person must have been convicted and then the advertisement inserted. Let us not forget that this is an amendment, an afterthought by the Minister's advisers or by the Parliamentary Secretary himself. That is how ministerial amendments come to be put down. The Parliamentary Secretary should not put it forward here as something sacrosanct and handed down from the mountain. I am quite certain that those who drafted this amendment envisaged a situation in which a judge would say "Mr. X, this court finds you guilty of an offence under section 8 and I am going to fine you under the provisions of section 8 for the commission of this offence, but if you are prepared to publish a corrective advertisement along the lines I indicate I will take that into account in deciding the level of the fine which I will impose". That is what is envisaged in this section. The Parliamentary Secretary is now making a post facto argument to justify it, not per se but in preference to Deputy O'Malley's amendment.
I accept what the Parliamentary Secretary has argued about the relationship between the new subsection (4) and subsection (3) (a). He is right in what he says. Subsection (4) is clearly related to an injunction under subsection (3) (a). Perhaps I did not express myself clearly enough when I spoke earlier but I meant to say that Deputy O'Malley used subsection (3) (a) in this context as a convenient form of words to indicate that an offence had been committed under the terms of section 8. He could just as easily have opened the new subsection (4) with the words "When an offence has been committed under subsection (1) of section 8". My point is that subsection (3) (a) is not an integral part of what Deputy O'Malley is after; it is just a convenient form of words. The Parliamentary Secretary has argued, quite rightly, that as Deputy O'Malley has drafted this amendment it is specifically related to the granting of an injunction under subsection (3) (a). At this stage perhaps the best thing for me to do is to withdraw this amendment in the name of Deputy O'Malley. I should prefer, and I should like to consult Deputy O'Malley about it, that the words "the court" should be inserted there instead of "the director". With the permission of the House I will withdraw Deputy O'Malley's amendment and oppose the Parliamentary Secretary's amendment No. 42 on the basis of putting down on the Report Stage an amendment which will give effect more directly to what Deputy O'Malley has in mind and to what I think the Parliamentary Secretary also has in mind, though his own amendment does not succeed in expressing it.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 7, after line 6, to add a further subsection as follows:
"(5) This section shall apply to a person within the jurisdiction who contravenes subsection (1) of this section by the publication of an advertisement in a place outside the jurisdiction which is read or seen by persons within the jurisdiction and which relates to the supply or provision of goods, services or facilities to persons within the jurisdiction."
I have no doubt that, however obscurantist and recalcitrant the Parliamentary Secretary has been up to now on the very sensible proposals we have been putting to him, he will certainly see the light with regard to amendment No. 19. It is the sort of amendment which is necessary to ensure that the legislation is comprehensively effective. Deputy O'Malley is endeavouring to repair a loophole in the original legislation. Before I go any further perhaps the Parliamentary Secretary would like to indicate whether he is accepting this amendment.
My case would be that it is harmless but not effective.
Perhaps I could influence the mind of the Parliamentary Secretary.
I should not perhaps disclose my hand until I hear what the Deputy says. Perhaps he can dissuade me from my initial reaction.
The amendment seems to be one which the circumstances of our situation dictate. There is no doubt that a great deal of the advertising to which we are subjected in this country comes from outside Quite a number of newspapers, magazines and journals circulate here which are imported and which are printed and published "outside the jurisdiction", to use the words of the amendment. In certain areas of the country we also have exposure to outside radio and television programmes which contain a high advertisement content. In those circumstances it is necessary, if the Bill is to be effective, that it should be extended to cover that situation. Deputy O'Malley's amendment covers exactly the situation I have described. It may be that the Parliamentary Secretary will argue that this is covered otherwise in the legislation. I do not think it is, but if there is any argument as to whether there is such provision it would be as well for the Parliamentary Secretary to accept this amendment and put the situation beyond doubt or, as the lawyers say, ex abundantia cautelae.
That is precisely my case. Publication is constituted not necessarily by the place in which a magazine is printed. If a person in Ireland inserts an advertisement in a British paper and that paper comes in here, the legal interpretation is that it is published in Ireland in the sense that it is made available and distributed and can be read within Ireland and the act of distribution constitutes publication. Therefore, according to existing interpretations the person within this jurisdiction in that situation would be subject to prosecution. However, if it would enable us to make progress in the matter I am quite happy to accept the amendment. There is no great principle involved and, as Deputy Haughey said, if it is only making the matter abundantly clear, there is no harm in that.
Amendment agreed to.
Question proposed: "That section 8, as amended, stand part of the Bill."
We have discussed the section in detail by means of discussing the amendments and I do not think there is a great deal more to be said about it now. It is a useful section and, as the Parliamentary Secretary has pointed out, it is reasonably limited in its impact. There must be misleading, and it is not enough to mislead; the misleading must cause loss, damage or injury to members of the public to a material degree. There are fairly useful safeguards built into the wording of subsection (1) and it is important that all concerned should understand that. We are not legislating to impose very onerous burdens on manufacturers or traders. We are not being capricious in this legislation but we are seeking to ensure that where some positive loss is caused, something detrimental done, the situation can be dealt with. It can be dealt with in two ways: by fine or by injunction procedure stopping publication. It is important to realise that even after section 8 is enacted it will not be an offence to publish advertisements which, though misleading, are harmless. It is important that the general public should understand that. We should use this Committee Stage to get that across: that the section only comes into operation where there is, if you like, deliberate misleading which causes damage to members of the general public.
Having said that, I should have preferred that the additional safeguard that Deputy O'Malley put forward would have been incorporated, but the Parliamentary Secretary has set his face against that and we must accept that situation. We must recognise that in the course of time, and as we get experience of its application, the section as it stands may have to be amended because, whereas we want the public defended and protected from misleading advertising which does them harm in any sense, we do not want to have legitimate, genuine manufacturers or traders penalised unnecessarily or wrongly by irresponsible members of the public or by unscrupulous competitors. Let us recognise that the section as it is is a good step forward. It is an advance but it has inherent dangers of some dislocation to trade and business. We shall only be able to assess whether they are serious or not as time goes on and as we gain practical experience of the operation of section 8.
Question put and agreed to.
SECTION 9
I move amendment No. 20:
In page 7, subsection (1), line 7, to delete "Office" and to substitute "office".
This is purely a drafting amendment to reduce the letter "o" in the word "office".
Amendment agreed to.
I move amendment No. 20a:
In page 7, subsection (1), lines 9 and 10, to delete "and is referred to subsequently in this Act as the Director".
This amendment arises from the discussion at an earlier part of this Committee Stage with Deputy O'Malley. As a result of amendments made then the director is defined under the definition section and therefore the provision here is not necessary. It is as a result of a suggestion made by Deputy O'Malley.
Amendment put and agreed to.
Amendment No. 20b on the supplementary list is in substitution for amendment No. 23.
I move amendment No. 20b:
In page 7, lines 11 to 15, to delete subsections (2) and (3) and to substitute the following subsections:
"(2) The office of Director shall be a position in the Civil Service and no person shall be appointed to the office unless the Civil Service Commissioners, within the meaning of the Civil Service Commissioners Act, 1956, after holding a competition under section 15 of that Act, have, under section 17 of that Act, selected him for appointment to the office.
(3) A person appointed to be the Director shall hold office for a period of five years but the Minister may, if he thinks fit, continue the appointment (including an appointment previously continued under this subsection) for such further period not exceeding five years as he considers appropriate.
(4) (a) The Director may be removed from office at any time by the Minister.
(b) If the Director is removed from office under this subsection, the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for the removal."
This meets an argument which was made by a number of speakers, including Deputy O'Malley, on the Second Stage to the effect that the director should be drawn from the widest possible range of persons and candidates and should not be confined solely as was originally the case, to persons among the existing staff of the Minister. If I may read the amendment, it will make the matter clear:
The office of Director shall be a position in the Civil Service and no person shall be appointed to the office unless the Civil Service Commissioners, within the meaning of the Civil Service Commissioners Act, 1956, after holding a competition under section 15 of that Act, have, under section 17 of that Act, selected him for appointment to the office.
That provides that the director shall be appointed by open competition and that his position will be within the civil service, but anybody can apply for the post. The person appointed to be the director shall hold office for a period of five years but the Minister may, if he thinks fit, continue the appointment, including an appointment previously continued under this subsection for such further period not exceeding five years as he considers appropriate. The provision for a five year term is designed to ensure that, if necessary, there can be a change in the person of the director because of a change in the nature of the office as a result of developments in the market place, or alternatively the director at the time ceasing to be appropriate to the job in his own personal capacity.
However, if the director is not reappointed after a five year term, it is not possible for the Minister to appoint a person of his own whom it may appear to be a good idea for him to have for one reason or another.
Or the Parliamentary Secretary.
I would never do the like of that. He must use the procedures set out in subsection (2) of the amendment and have an open competition, and so on. In subsection (4) (a) of the amendment it is provided that the director may be removed from office at any time by the Minister. Subsection (4) (b) of the amendment provides that, if the director is removed from office under this subsection, the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for the removal. This disallows any capricious act by the Minister in removing the director, because he will have to explain himself through that statement.
The fact that subsection (2) of the amendment requires that the new director shall be appointed by open competition removes the possibility that the Minister might exercise the power under subsection (4) to remove the director, or to get rid of somebody who is inconvenient, in the knowledge that he could substitute somebody of his own choosing in his place. Because of the provisions of subsection (2) it would be quite impossible for him to do that. While he can get rid of the old director, he must get a new one who will be selected in the same manner, quite independent of the Minister.
In large measure this amendment meets the case made by the Opposition, amongst others. I have thought about it and I feel it improves the legislation. There are some slight differences between amendment No. 20b and Deputy O'Malley's proposal in amendment No. 21. I do not know whether the House would wish me to go into detail but I will just sum them up.
May I interrupt the Parliamentary Secretary? I wonder is it clear or has it been announced that amendments Nos. 21 and 22 in the name of Deputy O'Malley are alternatives to amendment No. 20b in the name of the Minister and should, of course, be debated together. It should be clear that since amendments Nos. 21 and 22 are alternatives to amendment No. 20b they cannot be moved if amendment No. 20b is accepted.
The differences are as follows. The new amendment specifically provides that the director will be a civil servant. It deals more adequately with the question of the term of office. The term of office in the amendment proposed by Deputy O'Malley would have been indefinite and could have gone on forever. It is desirable that there should be provision for the office to be held for a determined period, and subject to renewal. That allows for the bringing of new blood into the office, if necessary. This will only happen through the procedure of open competition. It will not happen in any capricious or partisan manner. Provision is made for renewal of the office. Those are the three main differences between Deputy O'Malley's amendment and the amendment now officially proposed.
We welcome this amendment proposed by the Minister. There will be general agreement that the original proposal in the Bill was outrageous. It could not have been accepted. I accused the Parliamentary Secretary earlier of being ambivalent in his attitude to this new statutory person, the Director of Consumer Affairs. I suspect his ambivalence emanated in some respects from the nature of the office as originally outlined, because the creature originally envisaged in this Bill was a pretty unworthy statutory creation.
It simply meant that a civil servant, a member of the existing staff of the Department of Industry and Commerce, would have been asked to take on these new functions and, he would have been nominated by the Minister and subject to removal by the Minister, obviously he would have been a person of no consequence whatever. The office as originally suggested would have been entirely unsuitable and would have been a pale imitation of what most of us want. This new office will be an important one.
In this country and throughout Europe definite trends and tendencies are manifesting themselves in regard to consumer affairs. These trends are welcomed by practically everybody concerned. It is now recognised that with the complexity of modern society, ordinary members of the general public are relatively defenceless in the face of campaigns directed against them by large-scale commercial organisations. Advertising is now a very important weapon. It has an enormous impact. It has all sorts of techniques and methods which are deadly in their effectiveness. To a large extent, large sections of the general public are not in a position to assess the merits of what is put before them. They have not the information, the training, the knowledge, the expertise, to be able to assess properly the merits of products and services which are advertised. As advertising becomes more expert and skilled as a profession the greater the need is to have defence mechanisms established for the general public.
This legislation is important and is a step in the right direction. However, it is a tentative, faltering first step and it does not deal with a number of matters which many of us regard as far more important than the matters dealt with. For example, it does not deal with door-to-door salesmanship and with credit selling and some of the more urgent and immediate problems of modern society are outside the scope of this legislation. For that reason it is all the more important that it should be completely effective in the areas it covers. These areas are limited but they are important and, therefore, it is vital that the person who will have the duty of implementing this legislation should be a person of the necessary stature. As the Bill was originally designed he could not possibly be the kind of official we would all want him to be.
In response to pressure from Deputy O'Malley and others, the Parliamentary Secretary has come forward with this alternative proposal. In essence he meets the suggestion which Deputy O'Malley put forward in his amendment, namely, that instead of the new director being nominated simpliciter by the Minister of the day he will be chosen by the Civil Service Commissioners. That is a procedure which we know well. It is firmly established in the public sector and it has served the State well since its establishment. The procedure of appointment to the public service by means of the Civil Service Commissioners has become an unassailable part of our conduct of public affairs and, therefore, it is reassuring to find that this new office will be filled through that impeccable and unassailable machinery.
However, there are some questions that come to my mind about the amendments as phrased. I suppose the wording is deliberate but I should like to inquire if it is the normal wording used in these circumstances. Amendment No. 20b states:
(2) The office of Director shall be a position in the Civil Service and no person shall be appointed to the office unless the Civil Service Commissioners, within the meaning of the Civil Service Commissioners Act, 1956, after holding a competition under section 15 of that Act, have, under section 17 of that Act, selected him for appointment to the office.
I should like some elaboration on what is meant by "shall be a position in the Civil Service". Is that the normal wording used when people are appointed to the public service through the civil service machinery or is there some special significance in using that wording? I should like to relate that to the wording used in a later subsection which states:
The Director may be removed from office at any time by the Minister.
Is there a contradiction there? Can any civil servant be removed from office by the Minister? I have a vague recollection that an established civil servant can be removed from office by the Government only but I may be wrong about that. It may be that the wording used in this instance is to allow for the person to be removed by the Minister. As the Parliamentary Secretary has gone so far as to bring in the Civil Service Commissioners to allay many of the doubts we had about this procedure, should he not have gone the whole way and perhaps have the director removed by the House or by the Government or provide some further protection for the office? I do not think there is a great deal of protection involved here. The statement that the director may be removed from office by the Minister is a very bald statement. For example, it does not say "for just cause" or "where it appears to the Minister". It simply states that the director may be removed from office at any time by the Minister and it seems to give absolute power to the Minister. It does not say "where it appears to the Minister he is guilty of a breach of duty" or "where he is incapable of fulfilling his office" or it does not even say "for stated reasons". It simply says he can be removed from office at any time.
The amendment also states:
(b) If the Director is removed from office under this subsection the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for the removal.
I wonder what is the value of that? The first thing that can be said is that it may be too late because the man will have been removed from office. It is only afterwards that the Minister will have to give a reason to the House for his removal. There is no procedure set down as a follow-up to laying before the House a statement of the reasons. It seems to me to be a guillotine procedure; the person is removed from office and a statement is laid before the House giving the reasons. There is no way the House can revoke the removal from office and there is no way the House can come to grips with the situation. The power of the Minister to remove the director is absolute and total and this business about making a statement to the House is no real protection for him.
I know the Parliamentary Secretary will say that Ministers are reasonable, that they will not fire people whimsically or irresponsibly. He will say we can trust Ministers and that they will take this action only if they have reason. He will probably tell us that it is necessary that the Minister should have this power, that even the impeccable machinery of the Civil Service Commissioners could load us with an unsuitable person and that after a year or two it might become obvious to everyone that the person appointed was unsuitable. Therefore, it is necessary that in such a situation the Minister would have the power to remove that person from office. One can see the force of that argument. On the other hand, there is the other aspect, that is, that this new person will be very important and will have very difficult and sometimes unpleasant functions to perform. He will be a watch dog, a public guardian. As such he will necessarily incur a fair amount of unpopularity, dislike and will make enemies. Therefore, the man or woman who occupies the office will have to be a strong person, not necessarily a strong character personally but the office will have to be fire-proofed to the greatest possible extent.
We would not like to envisage a situation where, after a number of years, a director duly appointed by the Civil Service Commissioners and carrying out his functions diligently, honourably and in the best interests of the general public offends important sections of the business community and pressure is brought to bear on the Minister to get rid of him. The world being what it is, we must envisage that this sort of situation can arise and develop. It is absolutely necessary, in so far as we can do so in this legislation, to protect this office. We should make it secure from undesirable pressures. This person in this office will be very important, like a judge. To a large extent he will be exercising the same sort of functions, perhaps from time to time incurring the same sort of enmity, dislike and displeasure. Therefore, it is important that he should be as immune from dismissal as possible.
We have to strike a balance. We have to try to ensure that this office is impartial, immune from pressure and that the person occupying it will have security of tenure and know he can discharge his responsibilities fearlessly and without any risk of intimidation. In those circumstances, is it going far enough just to have him selected by the Civil Service Commissioners? I accept that is a very big step forward. I also accept it is a very big step forward that he is no longer just one of the Minister's officers, that he is an independent person, and that subsection (4) still remains. That subsection stipulates that he will be independent in the performance of his functions. Does the fact that he is capable of being removed by the Minister more or less at will not take from, and in a very real and serious way, the independence of the office? I am putting these points forward more for consideration than in an argumentative way.
It is clear from the fact that the Parliamentary Secretary put forward this amendment that he is trying to meet the House as closely as he can in this matter and I accept this amendment in that spirit. The fact that the Minister has this arbitrary power to remove the director from office simpliciter, without qualification of any sort, is not going far enough. Again, I ask the Parliamentary Secretary if he would elaborate on whether there is any particular significance in the wording “shall be a position in the civil service” and whether the normal provisions about removing civil servants apply to this office.
I will deal with the last point first. Subsection (4) (a) deals with his removal from office as director. It does not necessarily apply to his removal from the civil service. A civil servant could hold any number of offices during his career. The important point is that if he is removed the Minister must appoint somebody who has been recommended by the Civil Service Commissioners after a competition and his replacement will be as independent both in the mode of his appointment and in his functions as his predecessor.
I believe the office of director is very important in this legislation. It was originally intended that the provision of specialist means of its execution should be deferred to later legislation and be brought in in an omnibus measure for new enforcement of authority. In the meantime, while new offences would be created and new laws made, so far as enforcement was concerned that should be done by the Minister in the normal way. There would be no Director of Consumer Affairs who would have special concern in the matter.
It was my decision that the creation of Director of Consumer Affairs should be brought forward and introduced in the first of this series of consumer protection legislation. I felt it would be more appropriate to start with this person in being rather than to wait and introduce him much later. As new legislation is enacted, it is our intention to give the director new and additional functions. At the moment we have no final view as to what may be the totality of his functions.
Progress reported; Committee to sit again.