I do not think this was discussed very fully the last day. I was not here and perhaps the Parliamentary Secretary could indicate the reasons for this amendment before we go any further.
Consumer Information Bill, 1976: Committee Stage (Resumed).
The reason for the amendment is to allow the Minister to request the director to carry out particular inquiries. This would not give the Minister any influence over the director or over his findings. It would simply be a matter of asking him to investigate something. This is a sensible provision. From time to time Members might consider some practice detrimental to consumer interests and it is only proper that the Minister, acting in response to representations, should be able to request the director to carry out an inquiry and to report.
What exactly are the practices or proposed practices referred to here? Are they in relation to advertising or do they deal more broadly than that with consumer affairs?
They relate to the functions conferred on the director. These functions are at present confined to misleading trade descriptions. If, at some future date, other functions in relation to consumer affairs devolve upon the director the examinations he could carry out would naturally cover a wider field.
Would the Parliamentary Secretary not agree that the phrase "any such practices or proposed practices" would seem to refer back to (a), which seems to relate to advertising and the provision of information in relation to and description of goods, services, accommodation and facilities? The words "any such practices or proposed practices" would therefore appear to be confined to these particular categories and that would seem to inhibit the director from possible future extensions of his functions on lines all of us would desire.
If future extensions were made I think they could be framed in such manner as would ensure the Minister would have the option in respect of such extended functions of requesting that an examination be carried out. This should be read in conjunction with subsection (7) which provides:
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.
In that sense I do not think one would be confined solely to the matters mentioned in subsection (5) (a). I agree with the Deputy that it is desirable that as wide discretion as possible be given to the director and, if it is possible to improve the provision, I shall certainly do so.
Would the Parliamentary Secretary consider an amendment on Report Stage which would broaden the phrase used here, "any such practices or proposed practices", by adding something like "or any other consumer matters which the Minister may request him to examine or which the director considers it is proper to examine in the public interest"?
This is somewhat similar to a later amendment by the Deputy. There are problems in extending in an imprecise manner the functions of the director beyond those directly contingent on this Bill. Referring in that way to any other consumer practices is, I am advised, not clear enough. I agree it is probably all right in the case of examinations but where one gets into the area of powers that might be challenged in the courts it is important that the powers be sufficiently clearly defined so that there can be no question of the director's actions being challenged asultra vires. I agree it might be worthwhile having a look to see if we can improve the provision here, but not going as far, perhaps, as the Deputy suggests, to widen the functions.
The danger I see, and I said this as far back as the Second Stage, is that the director has a very narrow jurisdiction. His jurisdiction is confined to the matters with which this Bill deals. When one looks at consumer affairs generally then the Bill has a very limited jurisdiction. It deals with only one aspect of the whole field and many would say, with some justification, that the aspect with which the Government and the Minister chose to deal first is perhaps not the most important. I am not saying it is unimportant but it is one of the least urgent. Though all aspects are to some extent urgent, if the other legislation to follow were to take as long as this Bill took, the director could well be in a situation in which he would hardly have a day's work to do until such time as his functions are broadened by subsequent Bills. That is why I think, particularly as there is such an urgent need in regard to consumer affairs in spheres other than just this one, an effort should be made to give the consumer as broad a jurisdiction as possible.
I accept the case the Deputy is making certainly in so far as examinations to be carried out by the director are concerned. Obviously if one is giving him substantive powers to do things as distinct from examining them, one has to be a little more careful. However, I have said I would consider any amendment which would remove any doubt there might be as to the scope of the directors power to make examinations on request from the Minister being unduly narrow.
If the Parliamentary Secretary takes as an analogy, perhaps, the powers of the Examiner of Restrictive Practices, he cannot do a whole lot; it is up to the Minister after the report is brought in to take the actual action.
Yes, I would accept that.
Paragraph (b) here deals only with the holding of inquiries, and to broaden his power to carry out examinations would not give him power to do things.
I think he would be well employed examining consumer problems on a wider scale than is envisaged here. If the Parliamentary Secretary could tell us that it might be possible to draft some further amendments by Report Stage, I would be very glad to hear that.
I certainly will try to do so.
I move amendment No. 26:
In page 7, subsection (5), after line 46, to insert the following paragraph:
"(g) to ensure that the provisions of any legislation providing for the protection of consumers that, in his opinion, should be brought to the attention of the public are brought to the attention of the public and for this purpose to publicise those provisions in such manner and to such extent as he thinks appropriate,".
Amendment No. 27 in the name of Deputy O'Malley is an alternative, and the two amendments may be taken together.
The purpose of this amendment is to place an obligation on the director to publicise the provisions of consumer protection legislation in this and other measures. It is somewhat narrower than the Deputy's amendment. I think it is better to confine him to a more manageable task, namely, to publicisation of legislation. If he were given the remit to make publicity about any matter affecting the consumer, which might be one which had no relevance to any statute, conceivably it would be giving him such a wide task that he might not do the more important things and it is possible that he could go off at a tangent. For that reason it is better to confine the power in relation to the giving of information solely to matters which are, if you like, the State's business to publicise, that is, legislation. While accepting the general purpose of the amendment submitted by Deputy O'Malley, I have redrafted it in this way to meet a more net point.
The redrafting has taken 90 per cent of the value out of the original amendment, if you take No. 27 as the original and No. 26 as the Parliamentary Secretary's redraft of it. Am I right in saying that amendment No. 26 is only to bring to the attention of the public the provision of legislation and nothing else?
The amount of consumer legislation that exists is limited anyway. It is confined to about five or six series of Acts of which this one forms part of the series known as the Merchandise Marks Acts, going back to 1887, and there are about four others of specifically consumer legislation, which is what amendment No. 26 seems to deal with. There is not therefore a great deal of it and it is not all that difficult for the public to become aware of its provisions in the normal way. It does seem to confine the director very considerably in his functions, in that his only power to bring the attention of the public to such matters is in relation to legislation. It is a fundamental part of our jurisprudence that everyone is supposed to know the law and everyone, technically at least, has access to the law and can find out, often from a public representative, from a citizens' advice bureau, from a solicitor or someone like that, what the law is on a particular topic if they are not already aware of it, or they can look it up in a library.
It is not extending the director's powers very much to say he will have the power to publicise legislation. That is already publicised in a certain way. What I had wanted to do in No. 27 was not alone to publish and disseminate that type of information but also to publish and disseminate information about consumer affairs generally. There is a great lack of that type of information. It is only in the last week or two that we had a statement from the consumers' association in this country to the effect that the kind of information that is available, for example, to the consumer in Britain or in virtually any of the continental countries is not available here. While, unfortunately, with all the papers I have on consumer matters from Europe and elsewhere, I cannot place just at the moment that particular statement, I think I paraphrase it reasonably accurately when I say they drew attention in a letter they wrote to the Minister for Industry and Commerce and a similar letter they wrote to the Minister for Agriculture in the last week or so, to the huge increase in the price of meat last year and, in particular, apart from the increase in the cost of meat that was paid to the farmer, there was a huge increase in the margins that the trade were able to obtain in 1976. The feeling of the association was that if the kind of information that was readily available daily in Britain and in continental countries had been available here, the outrageous increases, which were up to 50 per cent in the price of beef and up to 38 per cent in the price of mutton and lamb, would not have taken place, that there would have been greater consumer resistance. Consumers were entitled to know from day to day the movement in prices so that they could make their arrangements accordingly.
That is a valid point. There is no service that I know of at the present time, either on television or radio or in newspapers, that monitors regularly the prices of various basic commodities. These prices are available, not just from a producer's point of view but from a consumer's point of view, in Britain from the BBC. They are available, as far as I know, in all the continental EEC countries. They are not available here and there seems to be no encouragement to provide them. The Parliamentary Secretary should urge RTE, for example, in the interest of the consumer, to provide that kind of information every day, perhaps twice a day. The price of beef is quoted every evening on RTE radio, it is quoted for the benefit of the farmers and in what, to the housewife, are rather unintelligible terms, the price per 100 kilogrammes live weight. No unfortunate housewife can convert that into £'s per pound. You would need a computer to do it. The price of fish is given on most mornings of the week but it is the wholesale price and bears little or no relation to what the housewife has to pay in the shops. The Director of Consumer Affairs should have the power to publish information of this kind which would be beneficial to the consumer and which would make a significant contribution to keeping down prices.
The Prices Commission does this sort of work.
The Prices Commission issue a report once a month and I must remind the Parliamentary Secretary that the report is published at periods which vary between one and three months after the month in respect of which the report is issued. The monitoring of prices as they were three or four months previously is of no value to the consumer or the housewife. It is more an academic exercise than anything else. Furthermore, when the lists produced by the Prices Commission are adopted by the Minister for Industry and Commerce and the price increases are imposed by him, he has forbidden his Department or the Prices Commission to advertise these increases in the newspapers. This was always the practice until about 18 months or two years ago.
The Minister's decision was on the basis of a recommendation made by the Prices Commission. It is not really relevant.
It is for the Chair to decide what is relevant.
We are discussing in amendment No. 27 the publication and dissemination of information about consumer affairs generally. If the price of commodities, basic necessities, is not information about consumer affairs generally, then I do not know what is. The situation is that it is almost impossible to get this information. I think it is the view of the Consumer Association—and if it is I would concur with it—that the absence of this information is a significant factor in the inflation rate of 20 per cent and upwards which we have had in the past year. If we had the daily publication or frequent publication of the prices of vital everyday commodities the element of competition would be much stronger and prices would be kept down to a much greater extent. That has been the experience in other countries where it is the practice of those who are responsible for consumer interests to publish such information at very frequent intervals, generally once a day and even twice a day in some instances. This serves to highlight attempts to raise prices unnecessarily. The consumer association gave as an example the extortionate increase of 50 per cent in the price of meat in 1976. The farmers did not get 50 per cent more but various people along the line got 50 per cent more and the housewife had to pay 50 per cent more, though in many cases she was unaware of the trend in prices because the whole thing was so secretive.
It should be the function of the Director of Consumer Affairs to arrange for the publication of that information as often as possible. We have a State-owned television station and the publication of this information every day would be regarded as a public service and would be appreciated. The tendency of the Minister is to hush things up and not even to publish by way of advertisement the price increases which he allows, except for a very limited category which he is apparently compelled by law to publish. The great bulk of price increases are not published.
It is quite inadequate for the Parliamentary Secretary to argue that it is enough for the Director of Consumer Affairs simply to publish and disseminate information about consumer legislation. That is far too limited a function. He should also publish or arrange for the publication and dissemination of information about consumer affairs generally. The amount of legislation we have is fairly limited and its value in many instances is somewhat out of date. That is why I urged the necessity of controlling consumer credit, where there are undoubtly abuses that cause considerable hardship to many consumers. I have also urged the necessity of updating the Sale of Goods Act of 1893 which was designed for an era totally different from the times in which we live. It should be possible for general information, particularly in relation to prices, constantly to be available to the public. They are concerned about this and many people are suffering grave hardship as a result of the uncontrolled inflation we have seen under this Government during the past four years.
I fear that if the Director of Consumer Affairs were given the job of publicising all matters which in his opinion, are relevant knowledge for the consumer, he would be drawn into a very expensive operation in the area of publicity and, furthermore, he would be diverted from his primary task which is to deal with certain practices which are misleading to the consumer and diverted from the more precise functions which he is being given in this legislation. There is grave danger in giving too wide a remit to any statutory officer. If that is done it will be impossible for him to do the job which he is intended by Parliament to do and he will be forced into a situation where he will have to select one aspect of his job on which to concentrate, thus not giving sufficient time to other aspects. I should prefer to see a defined task given to the director. If he were drawn into the situation in which he was publicising comparative prices in the shops in individual provincial towns and comparing the prices in the shops of Mrs. X and Mrs. Y in Abbeyfeale, the task would be so enormous that he would have no time left for the work which he is primarily being given. It is for that reason that I have decided that his function in relation to the provision of public information should be confined to information in regard to legislation, present or future.
One must realise that the provision of consumer information in the general sense, as distinct from information about legislation and rights conferred by legislation, is not solely a matter for the Government and should never become such. It is also a matter for voluntary consumer agencies and other agencies which may be acting with a degree of State support but not acting exclusively as agents of the Government. There is a big role to be played, for instance by the consumer associations themselves in giving general information to the public about consumer matters. Perhaps one of the good examples of what voluntary organisations can do is the example ofWhich magazine published by a consumers' association.
I would not agree with the concept of the director's function which would give him the power to take over, in effect, the functions of consumer organisations or to move into their area of competence to the extent to which Deputy O'Malley would seem to envisage. As far as the specific matter of price information is concerned, it is fair to say that the national broadcasting company provide information about prices through one of their morning radio programmes and also they have a programme on television calledAlert which provides fairly substantial information each week about consumer matters.
I have set up a committee to be known as the Consumer Education Committee. This committee consists of representatives of the Consumers' Association of Ireland, the Irish Housewives' Association and the Irish Countrywomen's Association along with the Department of Education and other people who are likely to be able to contribute in a useful way. The committee have been given a general remit to recommend ways and means whereby consumer education may be improved. This committee are already in session and in their terms of reference I specifically requested that an early report be provided. They may recommend that certain functions in the area of consumer education— I would hope functions more precise than those envisaged by Deputy O'Malley—might be conferred in the future on the Director of Consumer Affairs. I would be favourably disposed to any recommendations which might come from as representative a body as the Consumer Education Committee. I agree with Deputy O'Malley on the need to provide more and better information about comparative prices so as to enhance competition. However, the best form of competition in relation to prices is competition at local level between shops which are within a reasonable range of a given consumer. Publicising information about prices on a national scale, while it may be useful, is not often of great relevance to an individual consumer. For a consumer in Cork to know that he can get a commodity cheapest in a supermarket somewhere in Dublin is not really relevant information as far as he is concerned. It may be relevant as far as somebody in Dublin is concerned.
It is very relevant.
I would prefer to see——
I do not follow the Parliamentary Secretary's argument.
The Deputy might hear me out.
Surely a consumer in Cork has a guideline if he knows what a consumer in Dublin is paying.
I am not saying it is not useful, but there are more useful ways of supplying the information as far as the consumer in Cork is concerned. For that reason I am initiating improvements in relation to price displays in shops. Existing lists display the prices of individual commodities in very small type and consumers usually cannot see them until they are well into the shop and perhaps have made their purchases. The proposal I am making, and will implement in the very near future, will provide for price displays in much larger characters in such a place as can be seen by shoppers before they enter a shop so that people if they are in the shopping area of a town and are looking for individual commodities will be able readily to compare prices by, so to speak, window-shopping without necessarily going into a shop at all, or feeling under any moral or other obligation to purchase something, having gone into the shop.
Much can be done also through the agency of the National Social Service Council, who are concerned with advice to the consumer generally, in the matter of providing comparative information about prices. Obviously the council in question might not have the resources to carry out comparative price surveys themselves. However, they could perhaps enable individual shops voluntarily to submit their prices in respect of individual commodities which could be displayed or publicised on a regular basis by the council in a particular town. This would have the benefit that first of all, it would be voluntary; it would provide free advertising, so to speak, for the shops who submitted their lists of the commodities which had been chosen for a particular week for a particular town; and in the publicising together of the prices of a number of different shops in respect of the commodities chosen the shopper would be able to see this list either as displayed or as publicised in a publication and would be able at a given time to draw useful conclusions which he could immediately put into effect in relation to shopping in his own town.
Coming back to the interjection of Deputy Haughey, perhaps I overstated my case. I do agree with him that, to a certain extent, information about prices in Dublin is useful to a person in Cork andvice versa, and it could exercise a degree of pressure on the shopkeeper in the town where the price is higher to reduce the price. However, I feel that the type of local information which I have suggested, and which I am taking steps to have provided by the new display order, is more effective and of more practical use to the individual shopper. I feel that the function in relation to the provision of information which is given by amendment No. 26 is the best and most appropriate function to be given to the director at this time. However, if the Consumer Education Committee, who have been asked to bring in an early report, recommend that wider functions—more precise than those envisaged in Deputy O'Malley's amendment but wider nevertheless—should be given to the director, I will of course be favourably disposed to considering amending the director's functions in this matter in later legislation, of which there will be a considerable amount coming before this House as a result of work which is already in hand.
We have two amendments before us, Nos. 26 and 27, one in the name of the Minister, the other in the name of Deputy O'Malley. Perhaps the Parliamentary Secretary will accuse me of partisanship but I cannot resist the conclusion in my mind that Deputy O'Malley's amendment is by far the more beneficial in this context. Let me say to the Parliamentary Secretary that the amendment in the name of the Minister is very technical in its import. The Minister's amendment wants to confer a function on this new director:
"( ) to ensure that the provisions of any legislation providing for the protection of consumers that, in his opinion, should be brought to the attention of the public are brought to the attention of the public and for this purpose to publicise those provisions in such manner and to such extent as he thinks appropriate,".
That function deals only with the provisions of the legislation. I do not think that that is of any great value to the general public. The provisions of the legislation would be of interest to us, to lawyers and to technical people involved, but this new statutory creature's functions are to relate to the general public. With all due respect, the general public are not interested in the provisions of legislation. They are interested in matters that affect them. The provision of the legislation will be largely directed towards manufacturers, salesmen and shopkeepers but not specifically towards the general public.
Deputy O'Malley's amendment, on the other hand, talks about publishing and disseminating information about consumer protection and consumer affairs generally. The consumer is concerned with information for the general public about the products they purchase and the services they avail of, not the technical provisions of the legislation itself. It is the implication of the provisions of the legislation that are of interest to the general public. If the Director of Consumer Affairs does no more than say that subsection (3) of section 6 of the Consumer Protection Act, 1964 or whatever it is, states that, he will have complied with the provisions of the Minister's amendment. Surely that is not what we are concerned with. We are concerned with relating this legislation to the ordinary citizen going about his everyday affairs. Deputy O'Malley is right to have pointed out that what concerns consumers basically is information about the quality and price of goods, the services, the guarantees, the value and relationship of those goods or services to the person buying them, and not to the legislation governing the situation.
One aspect of this matter is in relation to people such as coeliac sufferers who have a vital interest in the composition of the articles they are buying. The Joint Committee on the Secondary Legislation of the European Communities looked into this question in another context and recommended that in future it should be compulsory for persons producing or offering for sale goods which contain gluten to specify the nature of the product as far as gluten is concerned. It could be made mandatory for a person selling a product which contains gluten to specify that it contained gluten or it could be mandatory that all goods must state whether they are gluten free or not. That is vital information so far as a coeliac sufferer is concerned. If a coeliac sufferer inadvertently consumed a product which had gluten in it, the effects could be very detrimental. We discussed this matter with the representative of the Irish Coeliac Society, and in the joint committee we made a recommendation that the proposed EEC directive be amended so that manufacturers would be required to indicate the presence or absence of gluten in their products and that this be supplemented by domestic legislation to deal with packaged products coming from non-member countries. I would have thought that this new status would deal with that sort of thing. Under Deputy O'Malley's amendment this person would have the duty of dealing with a matter of that sort, but under the Minister's amendment he would not. The Minister's amendment is much more restrictive and is of a much more technical nature. When discussing the sections as distinct from the amendments I will refer to the functions of this new office in regard to the whole EEC situation. I have only now mentioned the question of whether or not it would be necessary for this director to be on the lookout for the sort of situation to which I have referred and to have a duty to act in those circumstances.
Deputy O'Malley wishes this officer to have a function of publishing and disseminating information generally about consumer affairs. If the Minister's amendment was broadened in that way it would enable the Director of Consumer Affairs to be more useful to ordinary people in their everyday lives. As it is phrased at the moment it is of use only to practitioners and persons who are specifically and directly involved in the business of producing and selling goods.
There is a whole new body of legislation in this area emanating from Europe, from the Commission and the Council and I would have thought that some reference in this section to that situation would have been desirable. There are all sorts of directives emanating from the EEC about labelling, presentation and advertising and as far as I can see in the Minister's amendment the Director of Consumer Affairs will have no function in regard to these directives, so that the publishing and disseminating of information which would be of specific value to the consumer is the most important thing here. I am not too clear about the Parliamentary Secretary's intervention with regard to this consumer education council.
The Consumer Education Committee.
Is that to be a body which will——
It is purely advising on what should be done.
By way of legislation?
By way of consumer education in general. It is not just confined to legislation matters.
Is it envisaged that that committee will remain in being?
It is envisaged that they will present a report or reports on what should be done and action will be taken by whoever is appropriate on those recommendations. If they recommend changes in legislation or new functions for the Director of Consumer Affairs these can be considered at that stage.
Would the Parliamentary Secretary indicate if this committee are aware of what is in this legislation or if the committee were established prior to the publication of this legislation?
The committee were established about six weeks ago.
It seems to me to be a rather confusing process.
Is it private?
No. It has been publicised.
Here we are discussing a Bill which deals with a new Director of Consumer Affairs and we are trying to decide what functions he should have in these amendments. The Parliamentary Secretary now blandly informs us that while we are doing this a committee are doing exactly the same thing. Surely it would have been advisable to suspend our discussions on this Bill, leave the Bill aside until we either get this report from the committee or, alternatively, that we should have waited until we had this review before the Bill was brought in. If there is a committee examining those matters they may come up with some recommendations which are completely at variance with what we have in this Bill.
It is a rather peculiar way to defend the provisions of the Bill by the Parliamentary Secretary telling us that while we are discussing the Bill a committee are sitting and, depending on what they say, he may or may not amend those particular provisions and elaborate on them. It places this side of the House at a very considerable disadvantage. I do not think, whatever they come up with in their report, that they would be foolish enough to restrict the Director of Consumer Affairs in his functions to the extent of excluding the functions that Deputy O'Malley wishes to confer on him. This is an unsatisfactory way of dealing with the Bill. The director should certainly have the power we wish to see conferred on him in amendment No. 27. He should be permitted to be of the greatest possible usefulness to consumers by providing them with all relevant information about consumer affairs generally as proposed in Deputy O'Malley's amendment.
I should like to refer briefly to the point made by Deputy Haughey. The position in relation to coeliacs is primarily a matter for the Minister for Health. I know that discussions are taking place in relation to the points made by the joint committee in regard to how best they can be met. As far as EEC directives are concerned or regulations made by the EEC which provide new rights for the consumer these are matters of which the consumers should be aware. These will come within the term "legislation" contained in amendment No. 26 and, therefore, if the Director of Consumer Affairs feels that information should be made available to the public about EEC legislation as well as domestic legislation he will, under the terms of amendment No. 26, be in a position to do so and also be authorised to do so.
Deputy Haughey may be under a misapprehension in regard to the functions of the Consumer Education Committee. This committee are not confined in any way to dealing with what should be the educational functions to be granted to the Director of Consumer Affairs. The committee are concerned with all the possible agents which should play a part in consumer education. The schools, for instance, would probably have the biggest part of all to play. Television, the newspapers, consumer associations and voluntary bodies of various sorts will all have a part to play. The committee will as far as possible make recommendations about how consumer education in the general sense can be improved within the existing channels.
Within existing channels?
Yes, but they have also been told if they wish to suggest any new areas of activity or any additional expenditures which would be required they should specify what these expenditures are. I feel that the amendment proposed by Deputy O'Malley would give the Director of Consumer Affairs a laudable but possibly large task which would divert him from his major functions, which are the rooting out of individual practices which are actually deceiving consumers. I feel if he were given the broad functions envisaged by Deputy O'Malley's amendment he would be expanding into an area where other bodies——
Who are they?
In regard to information given in the schools the teachers have a function. In regard to information given at local level through advice centres the National Social Service Council and the bodies which they assist have a function. The consumer associations have a very major function in this matter which I would not be keen to see taken over by the Director of Consumer Affairs. There are a number of such bodies. I have only given an indication at random of the sort of bodies I have in mind.
I want to ask the Parliamentary Secretary a little more about the coeliac situation. I am sure he is aware that there are 15,000 people in the country who must abstain from any product which contains gluten. It can be quite disastrous for any one of these 15,000 people to inadvertently partake of the smallest particle of gluten. This is the sort of situation at which this Bill should be specifically directed. A directive is emerging from Brussels about the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer. This is exactly the area this Bill deals with.
That directive is in course of preparation. It is under consideration and being discussed and amended and processed through the normal machinery of the EEC institutions. The Minister for Industry and Commerce is the appropriate Minister in this country to deal with that directive, not the Minister for Health, although the Minister for Health also has a function in regard to it. It is primarily the responsibility of the Minister for Industry and Commerce. The Joint Committee made a very specific recommendation the purpose of which was to ensure that our Minister for Industry and Commerce and his advisers and officials in dealing with this directive would ensure that it covered this matter and that the containing or non-containing of gluten in a particular product would be stipulated on the produce itself.
The Coeliac Society and the committee were quite satisfied that this recommendation would be implemented and that, so far as it lay within their power, the Irish side in the discussions and negotiations would press to have this done. Some indication has been emerging recently that this may not be going to happen, and that the Irish Minister for Industry and Commerce may not be pressing to have this stipulation included in the directive. I do not know whether the Parliamentary Secretary is in a position to give me an assurance about this now, but I should be grateful if, before we conclude the discussion on this Bill, he would indicate what the position is. This is particularly relevant to the functions of this new Director of Consumer Affairs.
It is one thing, and it is beneficial and advantageous that the Director of Consumer Affairs should be able to help out the general public in so far as the quality of goods, the price of goods, or misleading advertisements are concerned, but surely it is far more important that he should be in a position to ensure that persons whose health and well-being could be affected by the composition of a particular product are protected. That is why I should like to see Deputy O'Malley's amendment accepted. I believe if it were accepted it would broaden the scope of the functions of the director sufficiently to enable him to take this sort of thing into account.
He could not enforce labelling. The Deputy is talking about labelling requirements. We are not really talking about labelling here. Deputy O'Malley's amendment would not give the director power to ensure that an individual firm put an individual label on their product.
It seems to me that under the general scope of Deputy O'Malley's amendment he would be entitled to bring to the attention of consumer associations the desirability of this sort of information being available to these sort of people. However, I just mention that by way of illustration.
It is not really central to the argument I am making. The argument I am endeavouring to make is basically that Deputy O'Malley's amendment is directed towards helping the ordinary consumer as a consumer, whereas the Minister's amendment is directed towards the legislation itself rather than to the application and implications of the legislation in practice. The Parliamentary Secretary is relying a good deal on this consumer education committee. This is a very unsatisfactory way of dealing with this situation. I am not clear what the difference is between consumer information and consumer education.
Surely the Deputy knows the difference between education and information.
That is exactly the point I am going to make. The idea of education in this context is a misuse of the word.
It is much broader than information.
Does it teach us how to distinguish between the different flavours of ice cream, for instance?
I can expand on the difference between information and education if the Deputy wishes me to do so.
It is the difference between information and education which has led me to raise this point.
Education is much broader than information.
In my view education has nothing to do with consumption and consumer affairs. That is why I asked the Parliamentary Secretary why in the Bill he talks about consumer information, whereas in regard to the committee he talks about consumer education. If we are to have this committee, why is it not incorporated in this Bill? If it is a useful body, if it has a function to perform——
It can be incorporated at a later stage. There will be further legislation and, if we wish to broaden the functions of the director in relation to the giving of information in the light of recommendation by this committee or any other body, it will be possible to do so.
I am not talking about the director at the moment. I am talking about the education committee which the Parliamentary Secretary has brought in by way of rebutting the need for Deputy O'Malley's amendment. Is that not so?
If as a result of consideration it was decided that changes or improvements or broadenings in the power of the director in relation to giving information should be made, they could be made.
The Parliamentary Secretary said to me a moment ago that, if necessary, this consumer education committee can be included in subsequent legislation.
Not the committee, the recommendations of the committee.
I took the Parliamentary Secretary to mean that some permanent form could be given to the committee.
The position is that the committee will report and then go out of business?
Is it anad hoc committee which will make recommendations and then cease to function?
At least now we have established that much. To my mind, that is unsatisfactory. If such a committee has a function at all, it should be a permanent function. If there is some subtle difference in this area between the functions the Director of Consumer Affairs will perform and this committee is performing, the sensible thing would be to incorporate permanent provision for such a committee in this legislation and not have us in this ridiculous position of dealing with this Bill now without knowledge of what the committee will say or do. If there is a job to be done in investigating how information or education should be disseminated to the general public or through different channels that should be an ongoing process. Such a committee should have been incorporated in this legislation with some function of advising or being in a consultative capacity to the Director of Consumer Affairs. It seems very haphazard and short-sighted to bring in legislation and have it discussed while, at the same time, having anad hoc temporary committee about to make recommendations and then go out of business.
Before the question is put I should like to reiterate what I said earlier in relation to the necessity to give information to the public by a permanent authority or body with adequate finances for that purpose. It appears to me that the Director of Consumer Affairs is misnamed if his functions are confined to the adminisstration of the Merchandise Marks Acts and this legislation. If he is going to live up to his title he should have powers to publicise the various matters about which we have spoken and he should give information on consumer affairs to the public.
The functions of the Director of Consumer Affairs are very limited under this Bill. I would not mind that if there were some permanent body in a position to assist consumers generally, as is the case in other countries. In Germany and France the State fully finances what are called comparative testing units for the benefit of consumers and those countries subsidise substantially their consumer organisations. There is virtually no subsidy for any such organisation here and, because they are part-time and voluntary organisations, their effectiveness is limited through no fault of their own.
I got this information from the Consumers' Association of Ireland who want to see some permanent authority deal with this matter. They do not want to carry out on their present basis the kind of jobs the Parliamentary Secretary is suggesting. They cannot do it on the basis on which they operate. They tell me that Denmark has a home economics council financed entirely by public funds and a consumer council with 50 per cent State funds. Even a country with a small population, for instance New Zealand, has a consumer council that is publicly funded to the extent of 50 per cent. The general view of the Consumers' Association of Ireland is that we should have a consumer information and research centre that would have a broad series of functions—very much broader than what is proposed here for the misnamed Director of Consumer Affairs. The director will deal only with merchandise marks, he will have nothing to do with the vast area of consumer affairs. At one stage the Parliamentary Secretary said he did not want to interfere unduly with the existing organs who were giving information on consumer protection. I asked him what they were and he referred to teachers at school——
Among other things.
Yes. He referred also to the Consumers' Association of Ireland. I would imagine that 95 per cent of teachers have no great specific knowledge of consumer affairs, of consumer legislation or consumer protection generally.
I was referring to home economics teachers.
Through no fault of their own their ability to assist consumers generally is limited. The Consumers' Association of Ireland—and there are other consumer bodies also on a voluntary basis—are the first to recognise that because they are voluntary and funds are limited they can do very little. They point to the good work done in other countries where there is a consumer protection authority or information and research centre with statutory recognition and with public funds. The passage of legislation to protect the consumer is of limited value if there is not a permanent authority to enforce it and to ensure that the value of the legislation percolates to the consumer.
The setting up of anad hoc committee, as referred to by the Parliamentary Secretary, is not the answer. Such a committee may do some good but it is very limited compared with what has been done in other countries and what could be done here at comparatively little cost. If we are to have a Director of Consumer Affairs who warrants his title, amendment No. 27 should be accepted. It should be accepted for the reasons given by Deputy Haughey in some detail.
If the Director of Consumer Affairs is to be confined in his functions as the Parliamentary Secretary wants, it would be much better to describe him as the director of merchandise marks or trade descriptions because that is all he will be. This was pointed out to me by those concerned with a rather backward state of consumer affairs in Ireland. It would be much better to give him an accurate name rather than mislead the public into thinking he has the right, power or duty to deal with consumer affairs generally. He has not and, therefore, his title is a serious misnomer.
The Parliamentary Secretary has not given any valid reason why amendment No. 27 should not be accepted. The only reason I have heard from him was that it would dissipate or widen too greatly what he called the remit of the director and he considered that matters would not be dealt with in sufficient detail. Presumably the director will not operate on his own. He will have a staff to help him and, if necessary, his office can be extended to ensure that he can deal with all aspects of consumer protection, information and education that need dealing with, that need enforcement and publicity.
It is my intention that further functions will be given to the Director of Consumer Affairs in subsequent legislation in a precise and carefully thought out manner, as dictated by the purposes of that legislation.
There is a difference of philosophical approach between myself and Deputy O'Malley to this amendment. He is anxious to give the Director of Consumer Affairs so large a task in the matter of provision of public information as would be unmanageable without very substantial provisions of public funds at the taxpayers expense. I am not anxious that that should be the case nor am I anxious to agree to some functions being given in broad terms when I am not satisfied that the resources existed to fulfil them.
That seems to be a very peculiar way of going about this business. Surely we should give the man the functions and then enable him to operate them as funds become available? The sensible thing to do would be to give him statutory powers and when we have the funds and the staff he should then execute them.
Then we would have complaints that he had functions which he was not fulfilling.
The normal democratic procedures would then take place and there would be pressure here and elsewhere to press the Government to provide the funds to carry out those functions. That is the way things should be done.
Who would provide the funds? The taxpayers?
Who are the taxpayers but unfortunate consumers?
One little technical matter intrigues me. The Parliamentary Secretary has just informed us that he proposes at a future date by legislation, carefully thought out, to confer additional powers on the director. Subsection (6) says:
The Minister may by order under this section confer on the Director such further functions as he considers appropriate in relation to any matters to which the Acts or this Act relate.
If the Parliamentary Secretary can do it by order under this legislation——
——in relation to the matters covered by this legislation, but some of the matters referred to by Deputy O'Malley are not covered.
The Bill says "to which the Acts or this Act relate"; "relate" not "cover". In other words, the whole world of consumer affairs can be dealt with by the Parliamentary Secretary by way of order under subsection (6). Why, then, is he going to indulge in this process of further legislation? Which is it to be?
If the matter comes within the ambit of these Acts, the Merchandise Marks Acts, it can be done by order. If it is a matter which concerns a wider area of legislation not covered by those Acts, it can and will be done by legislation if necessary. I have already said that further legislation is at an advanced stage of preparation.
That seems to me to be totally contradictory to what is envisaged in subsection (6) which clearly gives the Minister power to do this by way of order.
I move amendment No. 27:
In page 7, subsection (5), after line 48 to add a paragraph as follows:
"(h) to publish and disseminate information about consumer protection legislation and about consumer affairs generally".
I move amendment No. 28:
In page 7, subsection (6), line 51, after "this Act" to insert "or any other consumer protection legislation, existing or future,".
This amendment relates to subsection (6) and is connected with the point made by Deputy Haughey when he concluded on the previous amendments. Under this subsection as it stands the Minister may by order confer on the director such further functions as he considers appropriate in relation to any matters to which the Acts or this Act relate. "The Acts" are the Merchandise Marks Acts, 1887 to 1971. This Bill, although it is not called the Merchandise Marks Bill, is an extension of the Merchandise Marks Acts. It has been called the "Consumer Information Bill" to give the impression that it is something new which had never been thought of before, although an Act was passed on this topic as recently as 1971.
Because the Minister has power to extend the functions of the misnamed Director of Consumer Affairs, the director is confined here to further functions in relation to merchandise marks and trade descriptions. As the Parliamentary Secretary said, we would need legislation to give the director the kind of powers Deputy Haughey and I feel he should have and which the Parliamentary Secretary, after a lot of pressure, now seems to agree he should have ideally but which he refuses to give him because of the cost to the taxpayer.
It is interesting to go back a couple of years on the question of things which members of the present Government thought desirable and which they would not consider under any circumstances because of the cost to the taxpayers. I am referring in particular to food subsidies which two years ago were unthinkable and were called gimmicks when suggested by this side of the House. The Government said these subsidies would never be implemented because of the cost to the taxpayer.
The same argument, equally full of holes, is being made today by the Parliamentary Secretary in relation to extending the functions and jurisdiction of the Director of the Consumer Affairs. As Deputy Haughey pointed out, if the money is not available to let this man administer, enforce and have jurisdiction over all aspects of consumer legislation at the moment, then at least give him power and as the money becomes available extend his functions each year and the areas at which he will look, for example as is done in regard to the medical services.
As money becomes available the State provides a greater degree of medical care. For example, there has been a statutory obligation on the State from many years past—I think it goes back to the Health Act, 1953—to provide free dental care for a large category of people in the community: every medical card holder, every primary school child and certain categories of insured workers. Unfortunately, due to financial stringency, these people are not able to exercise their rights. Nevertheless the statutory right to these services has continued to exist since 1953.
If we cannot give the Director of Consumer Affairs power to deal with all aspects of consumer protection from the start, we should at least give him the power to do it and the money to do part of it in the first year, more the second year and more in the third year. That is the normal method of development. Because it seems that legislation is necessary to extend these functions outside of merchandise marks to the more vital areas of consumer protection, such as information, education, the control of credit and matters other than advertising trade descriptions, which is very important to consumers, the Minister should have the power here to enable these extensions of function to be done by order.
For that reason I have suggested inserting after the words "this Act" the words "or any other consumer protection legislation, existing or future,". That would cover everything. If necessary, perhaps we could introduce a few more words to amend that amendment. I presume it would cover EEC directives, which will be increasingly important in the next couple of years in consumer affairs. I would imagine the word "legislation" used in Irish legislation on its own covers only Irish legislation. If necessary by amendment of this amendment, we could make it clear that it covered EEC legislation also. There will be quite an amount of EEC legislation. I have been in Brussels recently inquiring about that very topic. There is a lot of it at the stage of near completion and hopefully it will be implemented within the next year or so. It is far more radical than anything proposed here and far more likely to be of benefit to the consumer than some of what we are now discussing.
Therefore I would ask the Parliamentary Secretary to accept this perfectly reasonable amendment. It gives the Minister power to make these orders. It does not compel him to make them if he thinks it inappropriate. At least it gives him power to do so, and it can be done quickly without the rather laborious necessity for legislation in this House which takes a very long time, not merely within the House but in its preparation and various other stages before it ever comes to be published as a Bill or introduced here.
I am in sympathy with the objectives of Deputy O'Malley in proposing this amendment. I am prepared to consider something which would meet his case. However, the problem is that the concept of consumer protection legislation contained in his amendment is imprecise. To be sure that the powers were being properly given the particular legislation should be specified more definitely. That is the advice of our legal advisers. I would be prepared to consider an amendment, if one could devise one that would get over this problem of precision in relation to the actual legislation one is referring to when one speaks of consumer protection legislation.
One possible way in which this could be done is that the legislation could be deemed to be such by affirmative resolution of the House. On whether provision would be needed in the amendment to have it take effect only if an affirmative resolution was passed, deeming in respect of a particular power to be given to the director, that the legislation in relation to which it was being given was consumer protection legislation, I would need to consult further. Possibly it could be done. In any event it is my intention that any extra powers which would be given to the director under subsection (6) would be given to him only after an affirmative resolution had been passed here and an opportunity for discussion had been afforded.
I should like to assure the Deputy that I will seek to draft an amendment between now and Report Stage which would meet the case he has made but get over the technical difficulty to which I have referred.
I thank the Parliamentary Secretary for agreeing to accept this amendment.
I hope we are not going to have an outbreak of benevolence.
If the Opposition give me the legislation quickly they will see even more benevolence.
I appreciate that the phrase I use in the amendment "consumer protection legislation" is not a precise one and could give rise to argument as to whether a particular Act or Acts were or were not in that category. If the Parliamentary Secretary wants to set out a list, that is all right by me.
It could be done by passing two resolutions at a given time.
Yes, a resolution to say that for the purposes of the section such-and-such an Act would be considered consumer protection legislation. That is all right too. While the Parliamentary Secretary is drafting an amendment on these lines to incorporate my amendment he might include also whatever phrase would be necessary to ensure that EEC legislation is covered also.
I do not know whether the Deputy was present at the time but we dealt with that. In my opinion it would not be necessary but I will check on it.
It is technically secondary legislation. It might have to be described as secondary legislation.
"Secondary" is just an adjective.
As long as it is covered I do not mind. It does seem that within the next couple of years the Community legislation will be of immense significance. Some of it is very radical indeed by our standards. Of course, some of it is based on a totally different type of law to ours and to the British. In particular I have seen the proposed directive relating to product liability where there is tremendous protection for the injured consumer but where the most enormous difficulties will be created for manufacturers, who in this country have never had to face such problems. Indeed it may put a lot of manufacturing undertaking here out of business unless some amendment can be negotiated by the Government. Certainly it is a potentially very serious thing if it is to be applied here suddenly. In parts of the United States similar legislation is in force. The difficulties created there for manufacturing firms are fairly considerable. There are many people, within the consumer lobby, in the United States who are having second thoughts about such extensive product liability remaining part of the law. I mention that in passing in reference to EEC legislation simply because I want to demonstrate that some of it by our standards will be extremely radical and important and may well have great effects on business and affairs here generally.
Therefore, I am happy to withdraw this amendment on the basis that it will be redrafted by the Parliamentary Secretary for Report Stage and that it will be clear that EEC legislation is included.
I move amendment No. 29:
In page 8, after subsection (9), to add the following subsection:
"(10) (a) Whenever it appears to the Minister that the Director is temporarily unable to discharge his duties, the Minister may appoint a person to act in place of the Director during such inability or for such shorter period as the Minister thinks proper.
(b) A person appointed under paragraph (a) of this subsection shall have all the powers, rights and duties conferred on the Director by this Act and each reference in this Act to the Director shall be deemed to include a reference to such a person.".
This amendment is an essential provision in a case where the director may become unable, for one reason or another, temporarily to discharge his duties. There is a similar provision to meet a similar occasion in the Restrictive Practices Act, 1972, in relation to the office of examiner.
Does this apply normally to the civil service—is there some sort of general provision of this kind in relation to public servants?
I do not think it is necessary to provide it for the civil service in general. In regard to this post, however, specific functions are laid down by statute. There would have to be somebody to devolve that post to somebody else when the director would be incapable, for one reason or another, to discharge his duties.
If this were a provision applying to the public service I would not worry but subsection (4) provides that the director shall be independent in the performance of his functions. I query the Parliamentary Secretary rather than argue with him on this aspect. Will this provision take from the rugged independence of the director? It seems to me the amendment will in effect give the Minister a way around the independence conferred by subsection (4). If the amendment stated "when it appears to the Minister, for some good reason", or something of that nature, I would not worry but the subsection now will read:
Whenever it appears to the Minister that the director is temporarily unable to discharge his duties,
That leaves the situation very open. There is no objective test that the Minister would have to conform to. Apparently, he would only have to be of the opinion that the director was unable to discharge his duties and then he could appoint somebody in his place. From the practical common sense point of view there is a need for some such provision but I am wondering whether the amendment does not go too far and take from the independence of this new office. That is why I asked what happens in a case where, for instance, the Secretary of the Department of Industry and Commerce became incapable of performing his duties temporarily, for some reason or another. Presumably the Minister can make an appointment in his place, but is there some overall provision relating to that situation?
He can be replaced temporarily from within the public service without any difficulty. If the Secretary of the Department is not able to perform his duties, an Assistant Secretary can do it. This is the practice.
Is there any law governing it?
I cannot say. I presume it is covered by the Ministers and Secretaries Acts. Here we are creating an office which is very definitely separate; it is not integrated within the departmental functions in the same way as the office of secretary or assistant secretary. The functions of this office are referred to specifically in statute. I can see some point in what the Deputy is saying. If one were sufficiently malevolent one could suggest that this is not for the best, but it is restricted to a situation where the director temporarily would be unable to perform his duties. I would have no objection to the incorporation of the words "for some good reason". I do not think it would make much difference because a Minister is supposed to act for a good reason anyway. If it makes the Deputy more satisfied I would agree to have the suggestion incorporated.
I agree that something like that should go in because at the moment the subsection reads "whenever it appears to the Minister"
We will put it now, verbally. I propose:
In page 8, after the word "Minister" to insert the words "with good reason".
I move amendment No. 30:
In page 8, after subsection (9), to add the following subsection:
"(11) (a) The Director shall in each year make a report to the Minister in relation to the performance of his functions in the preceding year and in relation to such other matters as he considers appropriate and the Minister shall cause copies of the report to be laid before each House of the Oireachtas.
(b) The Director shall furnish to the Minister such information regarding the performance of his functions as the Minister may from time to time require.".
The purpose of the amendment is to make it obligatory on the director to review annually the progress of his work, to provide any other information necessary to the Minister and to ensure the publication of an annual report which will be of benefit to the public at large and which will be laid before each House of the Oireachtas.
Is there any time limit on these reports?
The Parliamentary Secretary has played into my hands.
I agree with the Deputy's concern. I suppose we could have provided that the director must report within the subsequent 12-month period. I should like, however, to have the amendment redrafted and if the Deputy will agree I propose to have that done before the next Stage.
As the provision stands, it seems that the director has that obligation because it states that "the Director shall in each year make a report to the Minister in relation to the performance of his functions in the preceding year". The difficulty is that he could produce that report to the Minister on 31st December of the following year but the Minister may not publish the report or lay it before the Oireachtas. That has been happening all the time. Some of these bodies produce statutory reports three years after the year under review. I got a report recently relating to 1972-74. It is so out of date that it is useless. The Land Commission produce reports years out of date.
Just as well.
The Department of Justice publish reports on prisons. One came out recently in relation to 1973, when I was still in office.
Did it reflect well on the Deputy?
These reports are valueless. Some of the semi-State bodies do the same thing, including some of the important ones where such a report is vital. If a large public company can produce its annual report within three months of the end of its financial year I do not see why the director mentioned in this Bill cannot do the same. He is not under the same pressures and does not have to audit accounts and so on.
I would be prepared to add after the word "Oireachtas", "within six months of its receipt by him".
The Parliamentary Secretary had better take the amendment and tighten it up for Report Stage.
I would prefer to do that but I was indicating to the House my general intention. We must bear in mind that it is not just a question of ministerial delay in these cases. There is a queue for the printing of these reports in the office responsible for the Government's printing. Very often that can cause delays, particularly if something of a higher priority has to be printed.
It would help to reduce the number of unemployed if more people were engaged to do this work.
I have no function in relation to the number of staff employed in the Government's printing office.
Subject to the agreement of Deputy O'Malley, I suggest that the House accept this amendment on the understanding that the Parliamentary Secretary would bring forward an amendment in substitution on Report Stage which would make it mandatory for the report to be made available to the general public in printed form within the 12 months.
I would not go that far. I would be prepared to say that the Minister must lay the report before the House within six months of its receipt by him.
That would mean that it would be 18 months before the report would be available.
That would be the maximum, but if the director provides his report within less than the 12 months then the report must be produced within six months of that date.
I am concerned about this section because of my duties as Chairman of the Joint Committee on the Secondary Legislation of the European Communities. It seems to me that the Parliamentary Secretary is looking on this whole consumer affairs situation in a vacuum. He is setting about creating this office of Director of Consumer Affairs as if the EEC did not exist. There is no doubt that in this area, as in many other areas, the impetus is coming from Brussels. A great deal of what we are doing here now is being done under the spur of directives from Brussels. That applies right across the board, but it is particularly true in regard to consumer affairs. The Commission in Brussels are very active in this area and we are going to be compelled to move quicker than we might otherwise have done.
We would be foolish to let this legislation go forward without adverting to that situation. I should like to direct the attention of the Parliamentary Secretary to the directive on packaging, labelling, presentation and advertising of foodstuff and ranges of nominal quantities. This directive was considered by the Joint Committee who issued a report on it, their 46th Report. The directive is at a fairly advanced stage and will be with us for implementation soon. The Joint Committee stated in the course of their report that they had been informed by the Department of Industry and Commerce that many of the matters dealt with in the proposed directive are already provided for in existing legislation administered by that Department, the Department of Health and the then Department of Agriculture and Fisheries. They went on to say that they considered the directive, if adopted, should be implemented in a single domestic instrument which will also specifically repeal any existing statutory provisions. That directive is on the way but this legislation does not take any cognisance of it.
I should like to see section 9 amplified considerably in this regard. The fact that a number of different Departments, as pointed out by the Joint Committee, are concerned with the implementation of the directive makes it necessary to rationalise this situation. As far as legislation from Brussels is concerned this Director of Consumer Affairs should enter immediately into the situation. If he does not, we are going to have a certain amount of confusion. It seems to me that we will have a situation where we will have a Director of Consumer Affairs here responsible for the exercise of certain functions in regard to consumer affairs while side by side with that we will have the Department of Industry and Commerce proper responsible for monitoring EEC legislation on consumer affairs, going back and forward to Brussels to discuss it, negotiate about it and dealing with its implications for Ireland. It is not difficult to foresee a great deal of demarcation problems arising. We will have a situation where our internal affairs will be affected by legislation from Brussels and at the same time those internal affairs will be the responsibility of a Director of Consumer Affairs. It is common sense to make the Director of Consumer Affairs responsible for Brussels legislation as well as for our internal situation.
How would one do that?
By adding a subsection here.
But the Director of Consumer Affairs could not sit in in the Council of Ministers.
The Minister for Industry and Commerce does not sit in in the Council of Ministers.
He does when it is a matter concerning his Department.
The Parliamentary Secretary knows all these things are hammered out before they get to the Council of Ministers.
But we cannot say the Director of Consumer Affairs is independent and then say he must act in substitution for the Minister. The EEC legislation will be dealt with by the Council of Ministers.
There are 101 situations in which this arises. The Revenue Commissioners go backwards and forwards to Brussels dealing with Revenue matters but they are independent of the Minister for Finance in the execution of the tax laws of this country. There is not necessarily any conflict there. The practically of the situation is that directives of this sort are dealt with, teased out, negotiated, bargained about an official level long before they ever get near the Council of Ministers and the interests of the different countries are reconciled at official level before a directive is finally promulgated and sent forward to the Council of Ministers. I, as I say, would foresee a great deal of confusion if the Director of Consumer Affairs is not in on the discussions and negotiations regarding directives before they are finalised. In addition to that, I think the section must be amplified to ensure that once a directive is adopted by the Council of Ministers its implementation in this country is the responsibility of the Director of Consumer Affairs.
The procedure up to now in regard to this secondary legislation emanating from Brussels is well known. Broadly speaking, it is of two types. Some directives are immediately and directly applicable and require no further Act by the Irish Legislature or Executive. Other directives require domestic instruments for their implementation here. In the case of a directive which is immediately and directly applicable surely there is a clear case for that being the responsibility of the Director of Consumer Affairs because no further legislative act is required here by the Minister or by Parliament or by anybody else. The directive is directly applicable in our situation and in that case the supervision of the application of the directive should be the responsibility of the Director of Consumer Affairs.
In the other case I believe the Director of Consumer Affairs should have a function in deciding how the directive is to be implemented by domestic instruments and legislation because it is he who will have to deal with the results of the implementation of the directive. All in all, I believe there is a need to recast this section very considerably in order to ensure that the Director of Consumer Affairs is, first of all, in on all the discussions and the negotiations before the directives are finalised; secondly, in so far as directives are immediately and directly applicable to this country, that he supervises that applicability and, thirdly, in so far as additional domestic legislation is necessary to implement a directive, he should be the person who promulgates that legislation, even though it is done in the name of the Minister.
Deputy O'Malley mentioned there will be a great deal of this legislation coming our way in future from Brussels. He also mentioned that it will be radical in its implications for us. A great deal of it will be far ahead of the sort of situation and even of the sort of thinking to which we have been accustomed and I do not think we can afford to let this Bill go on and become a statute without referring to that situation. This directive to which I am referring deals with matters which will be specifically the concern of the Director of Consumer Affairs. It deals with labelling, presentation and advertising and, if this Bill is concerned with anything, it is certainly concerned with advertising. As I say, the situation would become very confused and very complicated if we do not provide in some way here in this function-conferring section for this new situation and for bringing the Director of Consumer Affairs into this process at the very early stage.
The responsibility in relation to what becomes law here whether by domestic legislation or by EEC directive is properly to my mind the function of the responsible Minister subject to control by the Oireachtas and I would not be prepared to envisage——
That is just not true.
——a situation where the function in relation to determining policy would devolve on any subsidiary party. However, I can assure the House that the director will be very fully involved in the consultations leading up to the determination of national policy in relation to any proposed regulation or directive and will be involved in discussions with Brussels officials to that end and will be consulted very fully by our own officials also, but the final responsibility must always rest with and remain with the Minister.
As far as the promulgation and implementation of legislation is concerned, it is open to us within the terms of this section, as amended, to confer further functions on the Director of Consumer Affairs and these can apply to matters concerning EEC Regulations as well as domestic legislation because, in my view, that is legislation just as much as domestic legislation. However, I promise to have the matter finally clarified. In so far as promulgation is concerned, the Director will have a function in relation to the promulgation of the provisions of legislation and the publicising of those provisions, whether that be European Community legislation operative within this jurisdiction or domestic legislation.
I venture to say I do not think the Parliamentary Secretary fully comprehends as yet what the EEC is all about because his opening remarks just now are quite erroneous. It is a simple fact of life now that the Minister for Industry and Commerce or any Minister of the Irish Government is no longer the ultimate authority in so far as legislation in this country is concerned. There is a growing body of legislation which comes from Brussels and which is immediately and directly applicable here without any further intervention by anybody in this country. That is one of the situations that this Bill must take cognisance of. If some instrument, directive or decision emerges from Brussels dealing with consumer affairs and is immediately and directly operative in Ireland without any further action on our part, then surely the person to see to the implementation of the administration of that directive in our circumstances is the Director of Consumer Affairs.
Implementation is a different thing from deciding whether or not it should be done.
There is no determining whether or not it should be done. That has been done already. That process has taken place in Brussels. The directive comes here straight from Brussels and is immediately and directly operative in our situation without any intervention on our part. That is the sort of situation I mentioned to the Parliamentary Secretary. I said there were three different types of situation, and that is one of them. This section should specifically state that where a directive comes from Brussels dealing with consumer affairs and is of direct applicability in our situation, the responsibility for the supervision and the administration of that directive should rest on the Director of Consumer Affairs and this section should state so.
The Parliamentary Secretary gave me a very bland and, I am afraid I must use the word, specious assurance just a moment ago. He said: "Please do not worry. I assure you that this Director of Consumer Affairs will be fully involved in all these discussions and negotiations about these instruments." That assurance is not satisfactory from the point of view of this House. We should ensure in this statute that there is legislative provision for that involvement of the Director of Consumer Affairs in this EEC legislation.
First of all, I think the case where the directive is directly applicable is unanswerable, but I am moving on to the other area where a directive comes from Brussels and requires legislation or a ministerial order on our part to have it implemented in this country. In that situation also I think this section should specifically state that the responsibility for any domestic legislative act to implement a consumer affairs directive from Brussels should be the responsibility of this new office. That is only common sense.
The next area to be considered is before the directives are adopted, when they are still at the formative, negotiation, discussion stage—and that can be a long process because the divergent legislation, the different viewpoints, the different traditions and the different attitudes of the nine countries have to be brought together and hammered out in the bureaucratic machines, if you like, of the EEC, before a directive is adopted. At that stage the responsibility for conducting the Irish negotiations where consumer affairs are concerned should be that of the Director of Consumer Affairs. That should be in the section and not left to a guarantee from the Parliamentary Secretary across the floor of the House that it will be so.
I want to draw the attention of the Parliamentary Secretary to an incident which happened recently in regard to this very area. This is something which Deputy O'Malley spoke about a moment ago. There is a directive coming out now on product liability, and this is a directive which, as Deputy O'Malley has said, will have starting implications for this country, which is going to represent a major upheavel in the law of negligence. We in the Joint Committee on Secondary Legislation were looking at this directive and we had some conception of the implications of what was involved. We asked the appropriate Department what their view was and we were informed that because it had such fundamental legal implications, it was going to be referred to the new Commission on Law Reform for their opinion, and we were reasonably satisfied by that.
It subsequently emerged that the matter had not been referred to the Commission on Law Reform at all. What happened apparently was that the Department of Industry and Commerce got in touch with the Attorney General and asked him to transmit the matter to the Commission on Law Reform for their view. They rightly thought that that was enough for them to do and that in due course the Commission on Law Reform would report on the matter. The Attorney General, for some reason best known to himself, did not refer this matter to the Commission on Law Reform at all, so exactly where the matter stands at the moment nobody quite knows. But there is this major, fundamental change in the whole law of negligence coming about and nobody is quite sure where responsibility for our approach to it lies.
I mentioned that to illustrate the danger of leaving these things to common sense, as the Parliamentary Secretary apparently wants us to do in regard to this. These things are so important that they should be spelt out in this legislation, and the role of the Director of Consumer Affairs in relation to EEC consumer affairs legislation must be incorporated and defined in this legislation. I think that case is unanswerable, and I press it very strongly indeed on the Parliamentary Secretary.
I think it would be possible for us to devise a number of amendments under the functions subsection, subsection (5), which perhaps could provide for the situation, but I would much prefer if the Parliamentary Secretary would say to us: "I see the need for a major recasting of section 9 in this connection and I propose to look at the section in the light of the situation and bring forward a considerably amplified section 9 on Report Stage."
In my view, the decision on the Government's policy in relation either to directives which will come before the Council of Ministers, if there is a dispute, certainly, or regulations where it would be a question of the making of representations by the Government expressing the official Irish view to the Commission, who would then take it into account in making the regulation, that in both cases, the latter being the one referred to by Deputy Haughey as being directly applicable, the responsibility for expressing the official policy of the Government of Ireland should rest squarely on the shoulders of the Minister. I do not believe this responsibility should be taken from the Minister or that the Minister's responsibility in the matter should be diminished in any way by sloughing it off to a director or any subsidiary person. Certainly if the Minister needs to get the director's advice on the attitude he should take or if the Minister wishes that the director should represent him at a particular meeting in relation to the matter, that can be done. However, I do not believe that the ultimate responsibility of the Minister who, after all, is answerable to this House, should be in any sense diluted. That is my fundamental position in this matter.
Even if I were prepared to accept what the Parliamentary Secretary says—which I am not because it does not take any cognisance of the realities of life—it does not go far enough. The Parliamentary Secretary is dealing only with a very narrow aspect of the negotiations in the formative stage of a directive. That is only a very minor aspect of the whole business. The Parliamentary Secretary has not said a word about what happens when the directive becomes law, when it is adopted.
I thought the Deputy was talking about determination of policy. I have dealt with it already, in fact, but I will deal with it again.
The Parliamentary Secretary has not dealt with it to my satisfaction.
That is the Deputy's privilege.
There is the question of negotiations, not just the question of making representations to the Commission in Brussels. It horrifies me to hear that expression from the Parliamentary Secretary—"making representations to the Commission in Brussels". These directives——
I was talking about regulations there. There is a fundamental difference.
Regulation or directive—the two terms are very often interchangeable in Community affairs. Let us get our terminology right. These directives or regulations, whichever they are, go through a long complicated procedure on which perhaps I should elaborate for the Parliamentary Secretary.
It is not necessary.
First of all, the Commission has the responsibility for promulgating and bringing them forward and they go to the Parliament and the Council at the same time. The Parliament has a function in regard to them and the Council has its own permanent machinery for processing. It is not just a question of making representations. The thing is hammered out, fought out, negotiated, discussed, debated; concessions are made and viewpoints are reconciled. All that has to be done by responsible officials of the nine countries. I am concerned that the Director of Consumer Affairs should be brought into that process at that stage, in so far as consumer affairs legislation is concerned. I am not happy that it will be left to the discretion of the Minister to say "Mr. Director, go to Brussels tomorrow and have a look at this matter".
Then put down an amendment on Report Stage.
I will do that, certainly. I am appealing to the Parliamentary Secretary because obviously this legislation has been compiled on the basis of ignoring this situation altogether and not adverting to it. I had hoped that the Parliamentary Secretary would have been prepared to recast section 9, but if not I will put down an amendment.
Another aspect is that when a directive or regulation or decision is adopted by the Council of Ministers very often it requires a further legislative act by the national administration before it becomes law. That may sometimes have to be done by legislation or on other occasions by ministerial regulation. In so far as consumer affairs are concerned that domestic administrative act should be the responsibility of the Director of Consumer Affairs. If it is a ministerial regulation it must necessarily be made in the name of the Minister but in this section there should be some responsibility placed on the Director of Consumer Affairs for the promulgation of that ministerial regulation to give effect to a consumer affairs directive from Brussels. The really important situation is where a consumer affairs directive will be adopted by the Council of Ministers and will become law, directly and immediately operative in this country without any further intervention on our part. No case can be argued for the Minister for Industry and Commerce being the responsible person there. The law has been made; it is now only a question of implementing and administering it. This section should place the responsibility for the implementation, administration and supervision of a directly applicable directive on the Director of Consumer Affairs. I trust I have made my case.
I reiterate my position that the responsibility for determining policy in relation to law in this country should rest solely with the Minister.
What about the Oireachtas?
Subject to the Oireachtas, of course.
They are only an after-thought.
The remark the Deputy has just made in so far as it attempts to ascribe a view to me is totally unworthy of him.
It is accurate.
It is in no way accurate. I referred to the Oireachtas earlier when talking about the position of the Minister in this matter. If he wishes to check the record, the Deputy will see that I have done so.
I am anxious to make some progress in relation to this section. So far as policy is concerned, the Minister will determine it and he will have the responsibility therefor and I believe it should remain so, but he can consult the director in relation to any matters. Powers exist in relation to the implementation of the legislation to devolve particular powers on the Director of Consumer Affairs under part of the section which we have just agreed and amended, in fact, to broaden the possibility as to the type of legislation under which powers could be given to the director. The same applies to the provision of information about the legislation.
I am very discouraged in trying to persuade the Parliamentary Secretary what is involved in our being members of the Community. I do not think he understands. He would not make those futile statements if he did understand what the Community is all about, what its legislative powers are. Once the processes of the Community start to operate, then to say that the Irish Minister for Industry and Commerce is solely responsible for policy is just nonsense. I am trying to persuade the Parliamentary Secretary in regard to many of the functions which we are now bestowing on the Director of Consumer Affairs that he will not be in a position to discharge them satisfactorily unless he has the statutory right to be the person in the Community process responsible for that, both at the formative and later at the implementation stage. If I cannot get that across to the Parliamentary Secretary I accept that he has every right to be irritated with me. He obviously does not understand what it is all about and he will regard me as an irritating nuisance. I can assure him that I am not. What I am saying is well grounded on the facts of the situation and the legal situation. If he is not prepared to see that, I do not propose to delay the House any longer on the matter.
I am worried about subsection (4). There is no amendment dealing with it so it was not mentioned during the debate. It provides that the director shall be independent in the performance of his functions. I am worried about his independence in this regard. We have just listened to the Parliamentary Secretary dealing with Deputy Haughey's contribution and outlining the fact that the Minister for Industry and Commerce is the be-all and end-all in relation to the making of regulations about consumer protection, but he did concede that the Minister would consult with the Director of Consumer Affairs from time to time. There is nothing in section 9 dealing with consultation between the Minister and the Director of Consumer Affairs. The purpose of this section as outlined in the first instance would appear to have been to create an independent person or body who would deal with this and who would be removed from any influence one way or the other in his decisions and in the performance of his functions as outlined in subsection (5). Subsection (4) specifically spells out, as did the original section, that the director shall be independent in the performance of his functions. On the other hand the Parliamentary Secretary introduced into this House, and we have passed, an amendment to the section whereby added at the end of the section, and properly so, is the provision that the director should be asked to make a report each year in relation to the performance of his function. The last part of that amendment reads:
The Director shall furnish to the Minister such information regarding the performance of his functions as the Minister may from time to time require.
That is a necessary and useful addition to the section. On the other hand, I am worried that the amendment submitted by the Parliamentary Secretary on behalf of the Minister takes from the independence of the Director of Consumer Affairs. We have completely amended subsections (2) and (3) and the section was fully debated as to how the officer could be appointed. Arising from our discussions and the amendments on section 9, the Director of Consumer Affairs is no longer somebody comparable to the Secretary, Deputy Secretary or Assistant Secretary of the Department of Industry and Commerce. He is an independent personage altogether doing his thing in relation to this and carrying out the functions assigned to him under subsection (5) and whatever further functions may be assigned to him under subsection (6).
I would like the Parliamentary Secretary to clear up a worry for me. Subsection (5) (c) says:
The functions of a Director shall be—
To request persons 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,
That is a judgement for the Director of Consumer Affairs. If the Director of Consumer Affairs feels that a person is advertising falsely the content of a particular package, the Director of Consumer Affairs can get after this person and instruct him to discontinue or refrain from this practice or, I presume, can go ahead and prosecute if the person refuses to refrain. If, on the other hand, the offending party feels that the Director of Consumer Affairs is going beyond himself, being a bit too oppressive in his attitude, taking an approach which the offender feels is a little bit too aggressive, and cutting the regulations too fine, is the potential offender entitled to lodge a complaint with the Minister and say "Your Director of Consumer Affairs is breathing down the back of my neck; he is making a nuisance of himself and I honestly feel that he is going beyond his powers"? Can the Minister interfere under this section? I visualise ministerial interference in this arising from the amendment which was added just before we got on with the section.
Let us assume that I claim my product is much safer than saccarine and can do away with the necessity for sugar altogether. A lot of pressure will develop. The Minister for Agriculture is going to be very interested. The farmers will be pressing him. If I put on a notice to say that this product has been tested and has been proved medically to have no damaging effects and the Director of Consumer Affairs is satisfied that I can justify that claim and put it on the label, somebody may get at the Minister for Industry and Commerce and say: "This is disastrous. The Director of Consumer Affairs is fully accepting it but we would want years to test that out. Maybe if human beings consume this product it can give them cancer and it has not been established that it does not." The Director of Consumer Affairs is satisfied and in this instance he is not harassing the individual.
What is the question?
Has the Minister the right to tell the director "You are letting this fellow off the hook too lightly? You should stop him". Has the Minister the right to tell the director that he should stop this fellow from making that sort of claim? If the Parliamentary Secretary tells me that the Minister has the right to stop this fellow from making that sort of claim under subsection (4), this subsection is inoperative. It is not being complied with. I feel in that context the Director of Consumer Affairs would have the right under subsection (4) to tell the Minister to go to blazes. On the other hand, the Minister can use the arm-twisting of getting after the director and saying to him "I want you, before you do anything in this, to give me such information as I require". Even if again the Director of Consumer Affairs is not able to satisfy the Minister, by furnishing that information to the Minister and justifying the man's claim, what can the Minister do?
The Minister can, under the section as amended, request the director to carry out examinations in relation to particular matters but he cannot influence the content of the director's findings in the matter. He can seek information from the director on what he is doing also under another amendment which has been made to this section. However, he cannot tell the director not to do such a thing. He cannot interfere with the director in the independent exercise of his functions in the manner that the Deputy seems to fear he might be able to do.
He can convey to the director that he is not too happy with the way he is doing his job.
In the final analysis the director and the director alone will decide whether or not he is going to continue with a course of action.
Section 10 is to allow us to implement a recommendation from the National Consumer Advisory Council that there should be an obligation on a manufacturer to provide information as to the care, maintenance and other aspects of goods. This will enable the Minister to make an order in respect of certain categories of goods where he feels that information should be provided, where he feels that certain information in relation to maintenance, storage and so on must be attached to the goods. This will be a useful protection to the consumer. Any orders that the Minister envisages making under this section will have to be approved by the House by a special resolution, so there will be adequate opportunity for debating measures the Minister may take under the section. I asked the National Consumer Advisory Council, which is a broadly representative body, to examine the powers which are being given to the Minister in sections 10, 11 and 12 and to recommend particular types of product in relation to which it would be appropriate to make an order.
The National Consumer Advisory Council. That is the body which originally recommended that such a power should exist. I asked them to make specific recommendations in relation to the types of commodity where the Minister might usefully require that information should be given, on labels attached to goods, in relation to maintenance, storage, safety and installation and use of goods. I now invite any members of the public or organisations to submit their views on how this power should be used. If there is not adequate discussion on this there is a danger that these powers will not be used sufficiently or to the extent intended.
Is there not power to some extent, at any rate, under the 1971 Act to make orders of this kind.
Yes, but it is limited.
Is it proposed to repeal the relevant section or sections in the 1971 Act?
The 1970 Merchandise Marks Act is the one in question. Powers also exist in relation to the marking of food under the Food Standards Act. It is not proposed to repeal these powers. This is an additional range of powers. If a particular type of marking is required the Minister has the option of using powers under this legislation or, if it is something that would come within the ambit of the Food Standards Act, of using powers under that legislation.
What is the difference between this power and the other powers?
The others are more confined as to the type of information which may be required. This power covers almost any relevant information. The Merchandise Marks powers relate solely to quantity, and the powers under the Food Standards Act relate to food. The power whereby the Minister may require that information be given on the label is confined to information about the quantity contained in the packet. The provision under section 10 is much broader.
There is provision at the moment, particularly in relation to food, that the contents of the packet must be given and this often entails a long list of ingredients of various kinds. I do not see that this section is doing anything beyond what is there already.
The power to require that information be given on the label in relation to the contents of foods is fine so far as food is concerned. However, there is other information in relation to non-food goods, in relation to industrial items, information such as maintenance, safety precautions which should be taken by a potential purchaser, the installation of an item, the expenses which may have to be incurred by the potential purchaser before he can use an item, and so on. This information is not covered by the Food Standards legislation, which is concerned solely with matters relating to food, and is not covered by the Merchandise Marks Acts, which are concerned only with the marking of the quantity of contents in a commodity. A much broader power is being conferred by section 10 to bring in any information which may be deemed by the Minister, and subsequently by resolution of this House, to be relevant to the consumer.
I presume that consultations under section 25 will take place before the orders are made?
This is more or less the same thing except that it relates to advertisements which are not attached to or beside the goods but which are published separately. This gives the Minister power, subject to the same safeguards, to require that similar relevant information be given in advertisement as and when it is considered necessary.
I understand that one of the abuses that exists at the moment in relation to advertising is the practice of certain firms, particularly in the food line, of advertising the availability of certain goods at a particular price, but having either no goods of that kind available at that price or else having such a small quantity available that they are gone very early in the day. Does this section cover that type of situation?
I gather that there is a problem in dealing with the matter raised by the Deputy. There would be difficulties about the definition of the quantity that would be required to allow an advertisement to be deemed inaccurate in the sense the Deputy has in mind. If the problem can be dealt with under section 11, I will be disposed to deal with it if we can get over the legal problems involved in defining the offence. There will be considerable difficulties in meeting the case the Deputy has made.
It is an abuse that is going on and it causes loss to the public. It is hardly enough to say that there are difficulties in dealing with the problem. It is a problem that should be tackled and dealt with. The State of Illinois in the United States deals with this problem by providing that where a supermarket run out of the goods in question which they advertise as being available at a particular price they must give the customer a credit note enabling him or her to obtain those goods at that price at some later date. The American expression "rain check" seems to work quite well there. If they can deal with the problem there, it can be dealt with here.
It is also necessary for the retailer who has run out of goods at the price he advertised or of the type he advertised to display a notice near the checkout desk of each supermarket to this effect. It is one of the abuses of advertising which is frequent here which I believe this section as it stands will not cover. It should be amended to cover this.
The problem is one of deciding what would be adequate buffer stocks that an individual might be required to have. It is possible that a small shop which in a normal way might not carry a very large stock of goods might suddenly find that because they had made a particularly attractive offer on one occasion that there was a huge demand for their goods and the goods could run out. It might be a great hardship for that shop to have to provide a lot of the same goods to all the people who come looking for them if they could not in turn get the goods from their supplier at a price that would enable them to sell the goods at the price they sold the original goods which they had presumably obtained at a lower price, if prices had gone up in the meantime at wholesale level. One size of buffer stock might be appropriate for a very big shop but for a very small shop, which could just as easily find themselves in this situation, another size of buffer stock would be appropriate but it would be very hard, legislatively, to distinguish between the appropriate level of buffer stock for a small shop in a country town and the appropriate level of buffer stock for a large shop in a city centre.
It is possible, if this matter becomes a severe difficulty in this country, for the director to take action under his powers in relation to the elimination of certain practices which are deceptive to the consumer under section 9 (5). I believe there would be severe drafting problems in getting over the matter but I will certainly make inquiries about the provisions made in the State of Illinois. I will see the extent to which we could adapt any of the provisions they have to our conditions.
The Parliamentary Secretary spoke about causing hardship to retailers who might find that if wholesale prices went up they would not be able to buy goods wholesale at the price they had already advertised they are willing to sell them retail. I am afraid he displays a lack of knowledge of what goes on in those matters. The whole purpose of this type of operation is to mislead the public. This is deliberately done by large retailers. They advertise what is described in the trade as a "loss leader". They sometimes sell the commodity in question at a lower price than they are paying for it. They certainly sell it at a lower price than their small competitors can purchase it. If they get themselves into difficulties as a result of that kind of activity which is designed to mislead the consumer, then their difficulty should be on their own heads. I would not share the concern of the Parliamentary Secretary for large retailers who deliberately set out to mislead the public and then get themselves into this difficulty.
There was an example within the past week—I suppose because it is very topical it is better not to mention it—where a certain commodity was being sold by a certain supermarket below the wholesale price and a lot of difficulty for many people arose because of this. It is not this year or last year that this difficulty first arose. It has been there for a very long time and will continue to be there unless this Bill deals adequately with that kind of situation. I believe there should be power under this section to deal with the deliberate advertising by a major retailer of a particular commodity at a particular price in order to draw people into their store and then either say that the commodity is not available, that it is available at a higher price or that it is sold out at five minutes past nine in the morning. This is being done to mislead the public. There should be power under this section to prevent this recurring.
That problem has been dealt with successfully in other countries. It is not good enough for the Parliamentary Secretary simply to say that there are a lot of difficulties involved in trying to draft legislation to cover this. We have to stop it if it is a damaging and misleading practice. It is bound to be damaging and misleading in other countries also but they stopped it. I suggest that between now and Report Stage the methods of stopping it be ascertained and that they be adopted here.
I do not believe that the section as it stands would allow the Minister to make an order which would stop that kind of deliberately misleading advertising. If the rectification of this problem causes hardship or loss to those who cause it themselves and create the problem by deliberately misleading advertising, which they know they cannot comply with, then let them suffer loss as a result. It is their own fault because they deliberately mislead the public in order to bring members of the public into their premises and having got them in assume that the members of the public will then purchase other goods at a good profit to the retailer in question.
The trouble is that the method of dealing with the problem would apply not just to the case envisaged by the Deputy but to people who might very innocently advertise goods at a particular price, having bought them at a lower price, and then find that the wholesale price had gone up. Some people will deal in the manner the Deputy has in mind but there will be others who will probably be caught just as easily by the provisions of the remedial legislation who would quite innocently find themselves in this situation. It is this problem of distinguishing between one case and the other which is posing the chief drafting difficulty.
The problem of loss leaders referred to by the Deputy is primarily a fair trading problem, and a problem encountered by other traders in competition with a particular trader. In the first analysis, this would be a matter for the restrictive practices machinery to consider. I have said I will have a look at the legislation referred to by the Deputy. I understand the possibility of dealing with the problem has been gone into exhaustively already. I cannot quote chapter and verse on the precise legal difficulties beyond saying what I have said already.
I take it the Parliamentary Secretary is talking about the fair trading aspect of it now rather than the advertising aspect.
I am saying the loss leader has a predominantly fair trading aspect to it.
Is it intended to introduce legislation in relation to loss leaders?
That is a separate question from the fair trading aspect because we are dealing here with consumer protection.
I know. The Parliamentary Secretary started talking about fair trading and it is only fair that I should ask him now is it proposed to introduce legislation.
One can only introduce legislation if it can be drafted in such a way as to be fair and not affect the sort of innocent situation to which I referred. Any decision as to whether legislation will be introduced depends on whether that criterion can be met. I cannot say at the moment that it is possible to draft legislation which would distinguish adequately between the perfectly innocent practice and the practice which is not innocent.
The Parliamentary Secretary is going back to the advertising aspect to which I referred. I am asking him about the fair trading aspect to which he referred.
The same difficulty applies one way or the other. It is the same practice and it is just a question of looking at it from the point of view of another trader in which case it is a fair trading problem, or from the point of view of a consumer in which case it is a matter for this legislation. One way or the other the drafting difficulty will be the same.
So we are not likely to see legislation on it?
There are significant difficulties in drafting legislation to cope with the problem mentioned by the Deputy. I have said I will have a look at the statutes to which he referred and I will then be in a position to say something further on the matter on Report Stage.
The Parliamentary Secretary will not if there is not an amendment because he cannot discuss the section again. In those circumstances does he think it would be possible to put down an amendment to cover the point?
I greatly doubt it. This section gives an order-making power to the Minister and the drafting problem would probably arise not in the form of an amendment to the section but conceivably in the form of an order which may be made under it subsequently.
Would the Parliamentary Secretary not agree—because I understood him to agree earlier on in the discussion—that, under this section as drafted, it is doubtful that the Minister would have the power to make an order on the lines I have talked about, even if the difficulty of drafting the actual order could be overcome?
It is doubtful.
Would he not feel that, even if there are problems about drafting the order, at least he should have the power to make the order if he can succed in drafting it?
I will have a look at that and see whether we can deal with it.
On re-reading it, the section appears to deal only with the kind of things which go into the advertisement. An advertisement can be just as misleading by what is left out of it in the circumstances we are talking about.
This section allows the Minister power by order to require that certain information be put into an advertisement. If he feels certain things are being left out which should not be left out, he can require in respect of that category that that sort of information be positively given.
Subsection (3) provides that the person who publishes the advertisement shall, subject to the provisions of the Act, be guilty of an offence. I take it that refers only to the advertiser. Is there not some section later on——
To which part of the section is the Deputy referring?
Subsection (3) creates an offence on the part of any person who publishes an advertisement which fails to comply with the requirements of the section. In the strict sense, I suppose the publisher is the publisher of the newspaper. What is intended here? Is it the person who inserts the advertisement in the newspaper? I am talking about newspaper advertisements now.
This applies to the person who publishes or procures the publication of the advertisement. The person responsible for the publication is the person who would be caught by the provisions of this subsection.
I suppose the person who is responsible for anything which appears in his newspaper is the editor or the publisher.
In respect of an advertisement submitted by outside parties to a newspaper for publication, the outside parties would be responsible for the contents of their advertisement because they were paying for it.
I think it is true to say that in the not too distant past editors have taken it on themselves to vet advertisements and refuse certain advertisements on the ground that they did not agree with the contents.
There is a defence later on which would let that out.
That is what I asked. Is it section 22?
Section 22 (4) provides:
In proceedings for an offence under section 2 of the Principal Act involving a false trade description or an offence under this Act committed by the publication of an advertisement it shall be a defence for the person charged to prove that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to an offence under the Principal Act or this Act.
I move amendment No. 31:
In page 9, line 7, to delete "description are" and to substitute "description, are".
The intention is to improve the sense of the draft by the insertion of a comma between "description" and "are".
The comma after "facilities" should go.
It makes the words "of any description" too disjunctive.
It does. I would be happy to do it now but in case there are unforeseen drafting difficulties it might be preferable if the House would agree that I make a further change in relation to the comma.
We might take it out now and if it is necessary to insert it we could do so on Report Stage. I find that more satisfactory because it might be forgotten in the meantime. We should take out the comma after the word "facilities" and move it on three words to the word "description".
I shall have to put it in the following way: Amendment, as amended, agreed to?
The amendment itself has been agreed. The question is, having made the amendment should we make a further consequential amendment to remove another comma? There is no difficulty to agreeing to the amendment as it stands. As I said previously we can do it on Report Stage.
We should put it down in the form of a separate amendment which we might call amendment No. 30a.
I move amendment No. 30a:
In page 9, line 7, to delete "facilities, of" and to substitute "facilities of".
Will the Parliamentary Secretary state what words or expressions are envisaged here? Are they words or expressions commonly used in relation to particular goods or services or commonly used in the course of certain trades or businesses?
The type of word that could come into this category would be the words "pure", "guaranteed" or "genuine" which might be used in an advertisement. For instance, if a person wanted to use the words "pure wool" it might be necessary for the Minister to say what those words meant in terms of composition and the degree to which any additive could be used in the product that was alleged to be pure wool. The same could be the case where the word "guaranteed" was used. The Minister would be entitled to say that if a person uses the word "guaranteed" in an advertisement he must be prepared to meet with certain specific requirements about what would be done about any complaints that might be made.
With regard to the definition of "pure wool" as mentioned by the Parliamentary Secretary, I take it that definition would be confined to wool and that if the word "pure" were used in regard to some other commodity it would not be binding. Is that correct?
So far as the word "pure" is concerned I am sure that would be the case. It would be impossible to operate it on any other basis. There may be other categories of words that are more narrow in their area of use than the word "pure". In such case there could be a situation where the meaning of the word might be defined for the purpose of this legislation. The likelihood is that the definition will apply to the meaning of the term in specified circumstances and not in general.
A word such as "guaranteed" could give rise to a lot of difficulty.
Yes, but it is to get over that trouble that the power is being taken. In addition, the provision exists whereby any definition the Minister may make, if it is to be made by order, will be approved here.
This is one of the orders to which section 25 applies.
I move amendment No. 32:
In page 9, subsection (1), lines 25 and 26, to delete "give to any person so requesting, if the request is made within 18 months of the publication of the advertisement," and to substitute ", if the Director or an officer of the Minister or an officer of a council of a county or corporation of a county or other borough in whose functional area the publisher has a place of business so requests within 18 months of the give to the Director or officer".
In its present form this section entitles any person, whether or not he has an interest in what is being advertised, to demand the name and address of the person who procured the advertisement. As such it is too far-reaching and representations have been received that it would have serious implications for the confidential relationship that exists between newspapers and those who advertise in them in relation to advertisements not in the course of trade or business. Accordingly, it was considered that the power to seek the names and addresses of advertisers should be restricted to the person designated. It would not be possible to limit this to business advertisements because the fact of whether an advertisement was for business purposes or was private would not be known in advance.
The kind of situation where this is most likely to be appropriate is in the case of a box number advertisement where obviously the person who inserts it would not like any member of the public to find out his name and address merely by getting on to the newspaper concerned. This would be particularly the case where it was obvious that there was no serious intention on the part of the member of the public to buy the article mentioned in the advertisement. That could be regarded as an invasion of privacy. Where a broadly-based campaign is launched by a firm it might be desirable for the consumer to know more about the firm but a power applicable to that kind of situation should not be used in an unfair manner in relation to the box number situation I mentioned previously.
We tried to find some means of distinguishing between those two types of situation on conceptual grounds but it was not possible. We found the most effective way was to get the name and address to the director and if a person wishes to get that information he must go the the director who will give it to him if he considers it appropriate.
I would have thought amendment No. 33 in my name would have covered that situation without all the problems the Parliamentary Secretary's amendment seems to create. It seems strange that somebody will not be entitled to get the name and address of an advertiser while, at the same time, a private individual under section 8 has the right to go to the High Court without permission from the director, the Minister or anybody else, and stop an entire advertising campaign. If a major advertisement relative to the provision of goods, services, accommodation or facilities appears in a newspaper, on television or anywhere else and the name and address of the person putting in that advertisement are not given, a member of the public should have the right to find out who they are: but, if it is a small box number advertisement, he should not have that right. That seems the simplest way to deal with it.
Now, a member of the public has no right as such—he has lost his absolute right—to find out who put in even a two-page advertisement which cost tens of thousands of pounds. I think that is wrong. It seems to me to be a wrong sense of priorities to ask in relation to a comparatively minor thing that the permission of the director the Minister or the local authority is necessary while under section 8, even an individual crank can proceed to the High Court. This was the point I tried to get the Parliamentary Secretary to accept when we were discussing section 8. He did not accept it then but he brings it in under section 13 in a way that seems to be far too confining. The simpler thing for him to do would be to withdraw his own amendment and add after "agent" in line 27 a sentence to the effect that this section shall not apply to box number advertisements in newspapers, magazines or periodicals. That would get over the problem and still allow the individual consumer the right to obtain the information in relation to big advertisements which were more likely to mislead the public at large than a small box number advertisement.
The trouble here is that the Deputy's amendment would remove the power from anyone, including the director, to get information within the ambit of this section about the person responsible for all box number advertisements. I am informed that box numbers are used predominantly for private purposes but in some cases they are used systematically for trade. It is desirable that this power should exist so that somebody can get information in relation to box numbers where it appears that they are being used for trade or in a manner deceptive to the public. While Deputy O'Malley's amendment is directed in the right way, it would go too far in one sense and not far enough in another.
This boils down to whether the Parliamentary Secretary or the Minister is of the view that a member of the public is entitled to this information. If that is the view, the amendment deprives him of his right. He can only get it if the director or somebody authorised by the Minister or the local authority seeks it. Does the Parliamentary Secretary not feel that the amendment is becoming too restrictive in order to get over a difficulty that arose only in relation to private advertisements under box numbers?
I see the Deputy's point. I would prefer if we did not have to introduce this amendment but this is the best form of amendment to provide protection against the situation where a private individual who is placing a private advertisement would be caught and forced to disclose his identity to anybody. The director would ensure that that power would not be used unfairly. As I said, in some cases box numbers may be used for trade. It is desirable that somebody should have the power to get the names and addresses of those responsible for all advertisements and that it should be the Director of Consumer Affairs who would act on the request of a member of the public but that an ordinary member of the public would not be able to get the information without going to the director as envisaged in this amendment.
It is possible that in certain circumstances this power could be abused in the sense that the information might be sought for the wrong reasons. Would the Parliamentary Secretary consider some safeguard in that respect?
The amendment provides a safeguard where it says that "the director"——
It also says "an officer of the Minister or local authority".
If, for example, certain advertisements appear in journals that do not have the approval of the Minister of the day, the power can still be used by him under this section as proposed to be amended to obtain information which might not be appropriate to a Bill of this kind.
Given that he is only getting the name and address, I do not think there is any likelihood the Minister would abuse his powers in any way. He would be accountable for any requests of this sort and would have to answer questions on the matter.