Perhaps the Parliamentary Secretary would recap very briefly what the purpose is of amendment No. 32.
Consumer Information Bill, 1976: Committee Stage (Resumed).
Debate resumed on 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 publication of the advertisement, give to the Director or officer".
—(Parliamentary Secretary to the Minister for Industry and Commerce.)
Amendment No. 32 provides that a person seeking the name and address of a person publishing an advertisement, whereas hitherto he could legally get this without going through any intermediary, and potentially thereby interfere with the privacy of certain advertisements, particularly box numbers inserted not in the course of trade or business by individuals for private purposes, now has to apply to the Director of Consumer Affairs who will be the only person who can obtain the name and address of an advertiser. This is the result of representations received from some newspaper publishers who feared the unrestricted right of people to get names and addresses of advertisers would interfere with the operation of box number advertisements in particular and this amendment is drafted to meet the objections made.
Are we dealing with amendments Nos. 32 and 33 together?
No. We are taking amendment No. 32 separately.
One can readily appreciate the need for this change. The purpose of the original section 13 was to enable the various procedures outlined in the Bill to be initiated. An essential part of initiating these procedures would be to ascertain who the publisher of the advertisement in question was. One can see immediately that this could cause great and widespread difficulties. Therefore the amendment is very necessary. Later I shall be proposing an amendment in Deputy O'Malley's name which will seek to exclude box numbers from the operation of the section altogether. This amendment is a necessary precaution or safeguard and, therefore, it is acceptable from our point of view.
Amendment agreed to.
I move amendment No. 33:
In page 9, subsection (1) line 27, to add:
"This section shall not apply to box number advertisements in newspapers, magazines or periodicals".
This amendment simply seeks to make sure that advertisements inserted under box numbers do not come within the ambit of section 13. This would be a wise provision to make. The insertion of an advertisement under a box number is a very well-established procedure and it serves a very useful purpose, indeed, particularly in the case of employment. The ability to have access to inserting advertisements under box numbers in the case of employment is widely appreciated by employers and employees.
It is very easy to envisage situations where, if the secrecy of the box number were to be done away with, employees could be placed at a very serious disadvantage. You could have the case of a person who was in employment and who was anxious to change his employment. In order to look around and see what alternatives there were, he could insert an advertisement under a box number indicating his availability without his employers being aware of some discontent or dissatisfaction on his part with his existing employment, or his conditions of service, or anything of that nature. The good old traditional secrecy of the box number is a very great value to many different types of people in various strata of our society.
Very often, too, in simple domestic matters a person wishes to put in an advertisement without letting the neighbours know. Again, the box number is a very useful device to enable him to do this. If it were to be the case that, under the terms of this legislation, anybody could get behind a box number and find out who exactly was the person advertising, this could result in serious inconvenience, perhaps disadvantage, and even embarrassment. I recommend this amendment to the House as being a worth-while change and a worth-while safeguard to insert into the general provisions of the Bill.
The purpose of the amendment No. 32 which we have just adopted is to provide a safeguard in relation to the use of box numbers. As a result of that amendment, only 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 who has a consumer protection function may use the power conferred in this Bill to seek the name and address of an advertiser. It is just the name and address, no more, which may be sought.
The problem about excluding box numbers altogether from this power, even when it may only be used, as is now the case, by a responsible official —not by any individual; for instance, not by a person's own employer as in the case envisaged by Deputy Haughey — is that we are aware that trade or business, and possibly even trade or business which potentially could be quite shady, can be and is carried out under box numbers. Obviously this is an area of trade where people could be put to considerable inconvenience. They might discover that what was being advertised under the box number was not what it should be, and that the person selling the goods was doing so for business or trade, and was continually using box numbers and purporting to be doing so in a private capacity whereas, in fact, he was doing it in a business or trading capacity.
It is desirable, therefore, that the Director of Consumer Affairs, and the officers of the Minister concerned with enforcement, should have power to inquire the name and address of people inserting advertisements under box numbers. Of course they would not pass on this information to other individuals whose interests were purely selfish, as the Deputy has indicated. Perhaps there could be a safeguard included to ensure that this power would be used in a responsible manner, even further to the amendment already adopted. However, to exclude box numbers from this power to inquire would exclude a form of box number advertisements that are used for trade or business and which could be used for the purpose of promoting deceptive trade practices.
One recognises that this is an area of some difficulty but I suggest to the Parliamentary Secretary that the way we are going about it now is not satisfactory from any point of view. For instance, after adopting amendment No. 32 section 13 will enable the Director of Consumer Affairs, an officer of the Minister or an officer of a county council, corporation or county borough to get this information. There is no restriction on that ability to get information by these people. There is no indication that they can acquire it only for the purposes of this legislation.
One would think that there should be a minimum safeguard included, that the director or officer of the Minister or local authority concerned should be confined to having the right to get this information in order to enable them to implement some provision of the legislation. That should be sine qua non. That safeguard is not included.
Whatever about including the Director of Consumer Affairs or an officer of the Minister, to include the officers of a council, a corporation or borough is widening it considerably. I am concerned here with the question of employment principally. I would be inclined to restrict it to the Director of Consumer Affairs or one of his servants. I do not think even the officers of the Minister should be included. I accept that one can see the need for the director to have access to this information because without that the Bill could be rendered largely inoperative in many areas. Therefore, we are on common ground so far as that is concerned but from then on we have to see if we can draw fairly strict lines of demarcation.
If any officer of the Minister for Industry and Commerce or of a local authority can go to a newspaper, periodical or journal and find out the name of the person advertising under a box number that is going much too far, particularly in the case of employment. Officers of the Minister for Industry and Commerce and of local authorities are involved in very wide areas of employment. In fact, if we were to exclude areas of employment in which they are involved we would be excluding much of the employment field. We should be at pains to ensure that a person, freely and without any fear or restriction, can insert advertisements in regard to employment under box numbers with a total feeling of security.
I mentioned employment because that is one area that is probably of the greatest practical importance, but it is not difficult to visualise many other circumstances in which ordinary citizens would wish to advertise without having their neighbours or officers of the Minister or the local authority know who is advertising.
Having said that, I recognise that the Parliamentary Secretary has a difficulty here. I think it is only a matter of refining the phrasing to ensure that the areas I am concerned about are protected. That could be done in a number of different ways. We could take Deputy O'Malley's amendment and change it to restrict the box number advertisements to employment situations. Deputy O'Malley's amendment then would read: "This section shall not apply to box number advertisements in newspapers, magazines or periodicals in regard to employment". That would go a long way to meeting my objections but I still foresee areas in which difficulties, inconvenience and embarrassment could arise.
Another way would be to amend Deputy O'Malley's amendment in such a way that, where the director was satisfied from the number, frequency and nature of the box number advertisements that they were being used as a device to get around the provisions of this legislation, in those cases he would be entitled to secure the information. There are a number of different ways in which we could achieve what the Parliamentary Secretary and myself are probably both agreed on, namely, we want to make the legislation work and we want to have the information available legitimately to the Director of Consumer Affairs when he needs it for the purpose of this legislation. However, we would like to have this time-honoured traditional procedure of box number advertisements retained for certain situations where it has served the public well.
I have given some thought to what the Deputy has said and I have a suggestion which might meet the case. It is to the effect that where the information is being sought in respect of box number advertisements the officers concerned would be confined to seeking it for the purpose of enforcement of this legislation. Secondly, they would not be allowed to pass it on to third parties other than those who have a responsibility for the enforcement of this legislation or to whom it is necessary to pass it so that the legislation may be enforced. That would probably get over the difficulty. I would suggest to the Deputy that the amendment as before us might be withdrawn on assurance from me that an amendment along the lines I have suggested and taking into account as far as possible the points made by Deputy Haughey will be submitted at Report Stage.
I accept that.
Amendment, by leave, withdrawn.
Section, as amended, agreed to.
SECTION 14.
I move amendment No. 34:
In page 9, subsection (1) line 30, after "retail" to insert "by weight (other than food packed for such sale by its manufacturer or producer or by the person who supplied it for such sale)".
The effect of this amendment will be to relieve a person who does not have or use a weighing scales from the obligation to provide one for customers, which they would have been required to do by the present draft. If, for instance, small shops, kiosks, et cetera, sell food only as an incidental and if all of this is pre-packed and they are not selling it by weight they would not in the normal way have a weighing scales and it would be inappropriate to require that they do so, given that they are not selling food by weight in a loose form and that the weight is only relevant in so far as it has been marked already on a pre-packed food which can be checked at the source of manufacture to ensure that the weight is accurate. I believe that the Bill without this amendment would perhaps, if strictly enforced, create difficulties for small traders of the type I have mentioned who sell food other than by weight.
Normally, the Opposition are pressing the executive personage responsible for piloting legislation through this House for concessions in favour of the general public, and normally one welcomes this sort of concession by a Minister or a Parliamentary Secretary, and one can see that the Parliamentary Secretary is endeavouring to have a common-sense approach here in this regard. However, I wonder if he is not being too accommodating, perhaps, in introducing this amendment. Any shop or outlet which wishes to sell to the general public should take the trouble and go to the expense of providing whatever amenities and facilities are necessary to give the public fair play and to ensure that the public is getting fair play. The provision of a scales as outlined in the original section 14 would seem to be a very reasonable and fair practice. The Parliamentary Secretary is worried about small places like kiosks and so on, and he is now providing that unless the goods in question are sold by weight there is no need to have the weighing scales.
These days a great deal of merchandise goods, are packaged by weight and goods are sold in packages which are supposed to contain a certain weight of goods. One loathes to think about it, but it is not beyond the bounds of possibility that some of these packages which profess to be a certain weight might not necessarily be up to that weight. I do not think it is altogether sufficient to confine the necessity to provide a scales to situations where goods are sold by weight only, which is the effect of the amendment.
I do not know whether the Parliamentary Secretary has thought of this aspect, that even in the kiosk, the very small hatch-type outlet where nothing is sold except pre-packaged goods, it would be desirable that a member of the public purchasing, for instance, a packaged 1 lb of peas should be able to ensure that the packages did, in fact, weigh 1 lb. It might be stamped as weighing 1 lb or 2 lb but might not in fact contain the appropriate weight.
So, although one sees that the Parliamentary Secretary is endeavouring to be reasonable and accommodating, nevertheless, I wonder if he is not going too far in this regard. It would need to be a very small outlet that could not in some way provide the facility which section 14 makes mandatory.
Section 14, without the amendment, would mean that anybody who sold any food at all, even the smallest article, would have to have a scales. That would impose an undue burden on people who might sell only one or two packaged items in a shop concerned with other business purely to convenience a few customers. They would have to discontinue selling these goods.
It is possible that this can be dealt with in either of two ways. If a person buys a pre-packed goods and weighs it and finds it is not the right weight——
Too late.
——he can complain about this matter to the weights and measures authority, who can take action with the manufacturer, who is the person responsible for having the pre-packed goods underweight—not the retailer. Furthermore, the general question of pre-packed goods being underweight is a matter of continual concern to the weights and measures inspectors, who can check at the point of manufacture more easily and quickly than they could check at the retail sales level, and I have asked in recent months that special care be taken by the weights and measures inspectors in relation to ensuring that pre-packed goods are up to weight. A campaign of enforcement of this matter is at present in course of action.
We do not want to get into a nit-picking argument about this but the argument the Parliamentary Secretary has put forward, that the person purchasing a packaged foodstuff which he subsequently discovers is underweight can take the matter up with the manufacturer, is no good. The ordinary citizen has not the mental equipment, has not the experience, the expertise, to undertake that sort of process. He will not bother. He will say "leave it be". The Parliamentary Secretary is diverting the argument by introducing that as a remedy.
This section 14 is concerning itself with a very specific requirement, a requirement that in a particular type of establishment this facility, this amenity, this safeguard would be available to the general public—the provision of a scales. The Parliamentary Secretary mentioned the case of a retail outlet which would sell one or two items of food and he suggests they should not be compelled to have a scales because they are selling only one or two items. Surely the right approach there on our part as legislators would be that, if only one or two items are involved, that places no great onus on them in regard to a weighing scales and they could cut out the one or two items causing the problems rather than we cut out the weighing scales which is there as a safeguard for the general public. I do not accept that argument. Weights and measures legislation and regulations are there to protect the public.
The Parliamentary Secretary says packaged foodstuffs are checked at the point of manufacture but many things could happen between the point of manufacture and the retail outlet. Alterations and adjustments could be made—not necessarily by the retailer; he could be perfectly innocent—along the line. I remember a very notorious case in my own constituency where packaged goods—they were not foodstuffs—were interfered with between the manufacturing outlet and the point of sale. The Parliamentary Secretary should not close his eyes to the desirability of this provision. The provision was made originally to put matters beyond doubt. Very often it is a useful justification for the retailer to be able to say to his customer: "If you do not think it is correct come over to the scales and we will find out". I want to express a very real doubt as to the desirability of making the amendment. I will not readily accept that there are any outlets on such a small scale of operation that those operating them should not be compelled to have some sort of scales on the premises.
Amendment put and declared carried.
I move amendment No. 35:
In page 9, subsection (1), line 35, after "place" to insert "(being food which that person has bought or is buying or about to buy)".
The purpose of this amendment is to confine the right a member of the public has now to require that goods be weighed for him in a manner he can see, a person who has a bona fide intention of purchasing the goods. This is to provide against a situation where a person might go into a shop merely for the purpose of creating mischief and demand that the retailer start weighing large numbers of items which he had no intention at all of purchasing.
This is a very sensible little precaution.
Amendment agreed to.
I move amendment No. 36:
In page 9, after line 39, to insert the following subsection:
"(3) A person who contravenes subsection (1) of this section shall be guilty of an offence".
In the original section there was an omission in that no provision was made for an offence being committed by failure to comply with the provisions of the section and this new subsection creates that offence.
Amendment agreed to.
Section, as amended, agreed to.
SECTION 15.
Amendments Nos. 37 and 38 are related and can be discussed together.
I move amendment No. 37:
In page 9, subsection (1), line 40, before "prevent" to insert ", without reasonable cause,".
Section 15 provides that a person shall not be prevented from entering a premises for the purposes of doing price comparisons. Carrying out price comparisons can be a useful service to the public or to an individual before making a decision. However, we have decided in this amendment to ensure that the person who is allowed to enter the premises without any obstruction by the owner shall be protected by the section only if he is doing so with reasonable cause. This amendment is as a result of representations from the Dublin Chamber of Commerce who feared that the protection of section 15 might be used by undesirable persons who had no reasonable cause but were just loitering in the premises and would seek the protection of the section to justify their continued presence on the premises.
Deputy O'Malley in amendment No. 38 seeks to confine the section to premises other than licensed premises. In the case of licensed premises there is obviously a particular reason for the owner being anxious to prevent people creating a nuisance by staying on the premises and it is possible such persons could claim the protection of section 15 as a justification for their staying there by saying they were simply there to compare prices. I believe amendment No. 37 will meet the problem adequately in relation to licensed premises. I believe it goes far enough. To exclude such premises altogether would not be desirable because bona fide price comparison studies might possibly be carried out in relation to licensed premises as well as in relation to other forms of retail sales.
The important thing about insertions such as this is to make sure they are made in the right place. First of all, I quarrel with the new form of words which will prevail if the Parliamentary Secretary's amendment is made. It would be much more elegant if the words to be inserted, that is, "without reasonable cause" were inserted after "prevent" and not after "not". The section would then read:
A person shall not prevent, without reasonable cause, another person . . .
As the Parliamentary Secretary proposes to insert the words after "not", the section would then read:
A person shall not, without reasonable cause, prevent . . .
It is not, as I say, a matter of great moment. The Parliamentary Secretary's amendment is otherwise quite acceptable from my point of view and is a necessary safeguard for premises in general. One of the particular reasons why one would welcome the Parliamentary Secretary's amendment is that in these days when we have this modern problem of fire bombs and so on, it is a very necessary safeguard that the Parliamentary Secretary should insert these words.
Leaving that aside, I think there is still a very good case to be made for Deputy O'Malley's amendment. Licensed premises are fundamentally different places from normal commercial outlets. A person in a licensed premises consumes the goods sold on the premises. There is that fundamental difference. That does not normally apply in other cases. Therefore, the general provisions of section 15 should not apply to licensed premises, as Deputy O'Malley's amendment would succeed in achieving. The type of person who would be frequenting, remaining in, hanging around, if you like, a licensed premises is potentially an entirely different type of person from the sort of person who would normally be involved in the operation of section 15. While accepting the Parliamentary Secretary's amendment, we should still make Deputy O'Malley's amendment as well.
Is amendment No. 37 agreed to?
It is agreed on the basis that amendment No. 38 is agreed as well.
No. I did not agree to amendment No. 38. In my statement I said, first of all, if the owner of the premises has a reasonable cause, if we accept amendment No. 37, he may eject the person anyway. If a person is loitering on the premises and is not staying there solely for the purpose and for the time necessary to make a price comparison, then he is remaining there without reasonable cause and under this provision the owner is perfectly entitled to put him off the premises anyway.
I also contended that it is possible, and indeed, probable that price comparisons would be made and would be appropriate to be made in respect of licensed premises just as they would in respect of other forms of retail outlet.
I wonder does the Parliamentary Secretary realise the position that a publican is put in. All kinds of undesirable people who are banned from licensed premises and for very good reason will now seek to enter them for the purpose of allegedly fulfilling their rights under the section. That is an undesirable position for a publican or a hotelier to maintain. The power that he had up to now to maintain what one would call an orderly house is undermined by this. These people can come along and say they are reading price lists or that they are there under some other pretext and nothing can be done about it. The very presence of them even for a very short period could cause a good deal of distress to patrons of the hotel or publichouse or lounge in question and cause potentially a considerable loss of business for the publican who might resent very much being forced by the section to allow them admittance although they might have been barred from his premises for a number of years.
Under amendment No. 37 if the publican has reasonable cause for putting the person out of the premises, he can do so, even if the person claims he is there for this purpose.
It would be for a court to decide eventually whether or not there was reasonable cause. The publican or hotelier, or anyone else for that matter, cannot arbitrarily or unilaterally decide that he has reasonable cause. The question of whether or not there is reasonable cause to exclude him is something that might well be disputed by the person coming in seeking to exercise his rights under section 15. There might well be an unseemly row in which damage is done to the premises or in which blows are struck and people are injured. It might be a matter that would have to be decided by a court a month or three months later as to whether the hotelier or publican had reasonable cause for trying to exclude an undesirable person. The court might well decide that, although that man was barred because of an incident that happened two or three years ago, the hotelier concerned no longer had reasonable cause to exclude him. It would give rise to a very difficult situation with a great deal of unpleasantness, which in my view is quite unnecessary and would be prevented by the acceptance of this amendment, which would simplify the matter, put it beyond any doubt and prevent the undesirable behaviour which inevitably would be caused by the terms of section 15 even with the Parliamentary Secretary's amendment which was apparently put in in response to mine——
No.
——in an effort to meet the problem that my amendment brought to light. However, it does not do it satisfactorily. Simply to say that he can put him out with reasonable cause is not sufficient. The onus would be on the publican to show there was reasonable cause, and it is a matter that would be debated in a court afterwards. The court would have to decide whether or not there was, and if injuries are caused or assaults take place in the course of the publican trying to exercise what he regards as reasonable cause in putting the man out, then the question of whether or not the assault was lawful or unlawful will hinge around whether the publican or hotelier, or indeed other shopkeepers possibly, had or had not reasonable cause in seeking to exclude the man. The Parliamentary Secretary's amendment does not solve that problem and, I am afraid, will only encourage certain people who want to create trouble in a hotel or publichouse to go in and act in a manner that will cause distress to the owner of the premises and to many of the customers, particularly women, who may be very upset at the possibility of a physical row breaking out and of unseemly conduct of various kinds taking place in their immediate vicinity.
I am anxious that the work of a publican in maintaining order in his premises should be made as easy as possible and I recognise that problems can arise of a sort which are peculiar to publichouses and which would not occur in other types of retail premises. Therefore, on reflection of the point put forward, I am prepared to accept the amendment. However, I reserve the right to introduce an amendment to the amended section on Report Stage, perhaps confining this exemption to cases where the publican had displayed at or near the door of the premises a price list which may be specified so that genuine price comparison can be made. We already have the type of price list required by law anyway in respect of publichouses and it would not be very difficult to provide these at the entrances to publichouses.
I am glad the Parliamentary Secretary has taken that view. He has saved many people a lot of trouble in that. I concur with him fully in his suggestion that we might wish displayed price lists that can be read from outside the premises in respect of drink, and I would hope that that would be extended to food. I understand that it is part of the law of France, for example, that any premises selling food and drink for consumption on the premises must display the prices outside the premises so that a person can read them without entering.
That is most desirable.
Amendment agreed to.
I move amendment No. 38:
In page 9, after line 48, to add a subsection as follows:
"(3) Subsection 1 (a) of this section shall not apply in respect of premises licensed under the Licensing Acts, 1833 to 1962".
On looking at the amendment again, I do not know whether it is my mistake or a mistake in the printing, but I think the letter (a) after I should not appear there because it is not appropriate to divide (a) and (b). In making this amendment I would ask that the letter (a) by agreement be struck out.
Agreed.
It will then read: "(3) subsection 1 of this section . . ." and so on.
Yes.
Amendment, as amended, agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."
On the section as amended I draw the Parliamentary Secretary's attention to a fact in case he intends to amend my amendment again on Report Stage. If subsection (3), as it now is, were not in this section it would be possible under the terms of the section as it originally stood for somebody to come along outside licensing hours and demand to exercise his rights under this section. That is a matter that should be borne in mind. That places the publican in an impossible position because if he complies with his obligation under section 15 of this Bill he will be in breach of his obligation under the licensing Acts generally to close between certain hours.
I can get over that.
Otherwise, with the amendment that has now been made and with the acceptance of my amendment, I am happy to accept section 15 as it stands.
Question put and agreed to.
SECTION 16.
I move amendment No. 39:
In page 10, line 2, to delete "Act, the" and to substitute "Act the".
The purpose of this amendment is to remove a comma which exists in the original text and the existence of which takes from the sense of the text.
I wonder if it is necessary. The existence of a comma would nearly appear to make it clearer that the absense of it, would it not?
I do not know. It runs better if the comma is not there.
Amendment agreed to.
I move amendment No. 40:
In page 10, subsection (1), line 3, to add:
"and any such authorised officer shall be a full-time civil servant or full-time local authority official".
The reason for this amendment is to prevent a situation whereby a part-time employee, of a local authority particularly, would be given the right to exercise the powers of authorised officers under this section. The powers as set out in subsection (3) are very extensive indeed. They are similar to the sort of powers the Revenue Commissioners have. The exercise of such extensive powers to inquire into the very private affairs of citizens should not be exercised otherwise than by people who are full-time employees of the State or full-time employees or officials of a local authority and who are responsible and answerable to their superiors, the city or county manager in the case of a local authority, or the secretary of a Department or a Minister in the case of a Department, and who could be disciplined in the way that full-time officials can be disciplined if they breach in any way the secrecy or privacy of the individual concerned and if they abuse in any way the powers that are given to them. The powers under subsection (3) of this section are very extensive. The section states that an officer may:
(a) at all reasonable times enter premises at which any trade or business or any activity in connection with a trade or business is carried on and inspect the premises and any goods on the premises and, on paying or making tender of payment therefor, take any of the goods,
(b) require any person who carries on such trade, business or activity and any person employed in connection therewith to produce to the officer any books, documents or records relating to such trade, business or activity which are in that person's power or control and give him such information as he may reasonably require in regard to any entries in such books, documents and records,
(c) inspect and copy or take extracts from such books, documents and records,
(d) require any such person to give to the officer any information the officer may require in regard to the persons carrying on such trade, business or activity (including, in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and of its committee of management or other controlling authority) or employed in connection therewith,
(e) require any such person to give to the officer any other information which the officer may reasonably require in regard to such activity.
The difficulty which one sees immediately is that many local authorities have part-time employees who may devote only a few hours a week to this work on behalf of local authorities and who otherwise are ordinary members of the community who may have personal vendettas or personality clashes with their neighbours and who might use their powers as authorised officers for an improper purpose to embarrass somebody whom they did not get on with or for some other invalid reason. This difficulty would not arise with full time officials and in the case of the Department or the civil service the officials would be full time anyway, so no change is proposed by this amendment in practice in that respect. In the case of a great majority of local authorities the officials who would be designated or authorised under this section would be full time too. County Councils have a lot of part time employees in various capacities, as have health boards and other local authorities, and it would be inappropriate and liable to cause difficulty if such part time employees were given the rights and very extensive powers of authorised officers under this section.
I will have quite a bit to say later on about the extent of the powers of authorised officers, but assuming that they go through as they are, it is not appropriate that part time officials should have the right to exercise those powers. It will not affect the great majority of local authorities because in practice they appoint full time people. The difficulty about a part time employee who does only a few hours a week in a local authority is that the ultimate sanction of firing him for abusing his powers does not count for very much in the case of someone who may only be in receipt of a small allowance and his career is in no sense affected.
On the other hand, one can discipline a full time official much more thoroughly with the ultimate threat of dismissing him from his job for the abuse of powers. That would be a very serious matter for a full time official because his whole career would be gone. This is a sanction that would only be exercised as a last resort in any event but at least it is there. There is no real sanction against part time officials and that is why the extensive powers here should be confined. In practice those powers will be confined in nearly all cases to full time people but it should be spelt out here. I am not saying that they would have to be full time on a particular job as authorised officers. They could do other work for the local authority as well but they should not be appointed as authorised officers unless they are already in the full time employment of the local authority or Department concerned.
It has always been the intention that all people involved in the exercise of these powers should be full time officials. I can see no objection to giving the additional protection which is sought in the amendment and providing that that shall be such by statute.
Amendment agreed to.
I move amendment No. 41:
In page 10, after line 38, to add a subsection as follows:
"(5) The powers conferred in subsection (3) of this section may only be exercised where the Minister, the Director or the authorised officer concerned has reasonable grounds to suspect that an offence under the Acts or this Act. has been or is being, committed".
This amendment proposes to add a subsection to this section. It would be subsection (5) and it would read that the powers conferred in subsection (3) which are set out there very extensively and to which I referred briefly in the course of my remarks on the last amendment which was accepted may only be exercised where the Minister, the director or the authorised officer concerned has reasonable grounds to suspect that an offence under the Acts or this Act has been or is being committed. The reason for this amendment is that as the matter stands an authorised officer, who was potentially badly disposed towards an individual, could arbitrarily go into a premises and inspect the records of the business and ask questions on spec. He would need no grounds for suspicion or for seeking to try to investigate an alleged or believed breach of some provision of this Bill. He could simply go in and say that because he is an authorised officer under section 16 of the Consumer Information Act, 1977, he is entitled to ask for the production of records for inspection. If the person in question does not produce the books, he commits an offence under subsection (4) and could be fined a substantial sum or possibly in certain circumstances he could be jailed. That is quite wrong.
Even a garda does not have that power. If a garda is about to arrest someone he can only do so if he has reasonable cause. There is nothing here about the officer having reasonable cause. He can go in as I have described in the hope of finding something as a result of his search. The vast majority of authorised officers or people who will be authorised would not go in unless they had reasonable grounds to suspect that an offence had been committed but particularly in rural areas this could be done for a vindictive purpose. The making of an inspection of this kind without reason is wrong and an authorised officer should have no more power than a garda in similar circumstances. The Garda have not the right to arrest someone out of the blue. They must have a warrant as a result of sworn information to a district justice or a peace commissioner or else they must have reasonable cause to suspect that somebody had committed a felony, was about to commit a felony or is in the process of committing a felony. We heard all of this at great length on a number of Bills of a security nature or of an anti-subversive nature in this House—one within the past nine months, another at the end of 1972 and another in 1971. All the questions of the powers of the Garda to arrest without warrant and so on were gone into in great detail.
The right of an officer to go in and inspect all the books and records can be no less traumatic from the point of view of the person whose books and records are being taken away and examined than it is for someone who is arrested without a warrant. In a matter of this kind, I do not think an authorised officer should have the power to go in and inspect arbitrarily, or unilaterally or, as I put it, on spec. At the very least he should have reasonable cause or reasonable grounds, as I suggest in this amendment, for suspecting that an offence under the Acts or under this Act has been or is being committed.
We are not dealing with subversives here. We are dealing with people who allegedly put in a misleading advertisement, or people who allegedly did not comply with an order to label their goods properly. For example, if an order was made that the contents of a tin of goods should be set out on the tin and if there were ten different contents and the man only set out nine, or something of that kind, he might have committed an offence under the law, but it could not be called a heinous crime calling out to Heaven for vengeance. It is a technical matter and we should see it in that context.
We should not give these extraordinarily excessive powers to officials of local authorities to be exercised any time they see fit. They should be able to show they had some reasonable cause. They must have some reason to suspect the person. Therefore, I would ask the Parliamentary Secretary to accept this amendment also. It will not hinder the exercise of their power by officials. It will simply ensure that arbitrary, vindictive, unilateral or speculative raids will not be made and that, before he looks for records and books, the man would have to have some reasonable ground to suspect that something is happening. Maybe nothing is wrong and the inspection will show nothing is wrong. That will not matter as long as he has some reasonable grounds for suspicion which he can produce in court afterwards.
Amendment No. 40, which I accepted, provides an adequate safeguard against any vindictive use of these powers by officers. They must now be full-time officers and they will be subject to proper disciplinary procedures in respect of any action they take which is vindictive or unjustified.
The Deputy referred to the powers in the section as extraordinary. They are not extraordinary. In fact, they are exactly the same as the powers provided in section 4 of the Merchandise Marks Act, 1970. The powers in this section are reproduced from the Merchandise Marks Act, 1970. There has been no complaint about the effects of those powers in respect of enforcement of that Act. If Deputy O'Malley's amendment were accepted, and an inspection could not be carried out of the premises, using any of these powers, unless an offence was suspected, there would be two problems.
The director or the authorised officer would have to be able to prove he had reasonable grounds for suspecting an offence, which could be a very difficult process for him and would make inspection very difficult even where he had some grounds, but perhaps not sufficient grounds to satisfy a court, for his suspicion. He would be inhibited from making any inspection or using any of these powers. There is a lot to be said for routine inspections of premises in this way. If one acts solely on the basis of complaints received, and has not the power to make routine inspection of premises to ensure that the provisions of the Act are being complied with, even where complaints are not received, the enforcement of the legislation will be diminished considerably.
Furthermore, if Deputy O'Malley's amendment were accepted, any visit by an inspector or an authorised officer under this legislation to a particular premises would be taken immediately by any member of the public who saw the authorised officer entering the premises as indicating that the person in question had committed an offence.
It can be taken as that anyway.
If it is clear that a premises may be entered without necessarily any suspicion of an offence, or that a premises may be entered as part of a normal routine inspection carried out on a regular basis regardless of any suspicion of an offence, there would be no stigma attached to such a visit by an authorised officer. The section, as it stands, provides a better safeguard for traders from unreasonable suspicion and from adverse comment than it would if Deputy O'Malley's amendment were accepted. Needless to say the powers will be exercised in a responsible manner, as have been the exactly similar powers conferred in the Merchandise Marks Act, 1970.
When you come to a thing like this, there is no power conferred on an officer of this kind which was not already conferred in some other Act sometimes as long as 60 or 70 years ago, in this case seven years ago. If the power is too extensive that, of itself, does not morally validate the powers which may have been conferred by a less vigilant Legislature than this one.
Many people consider the powers of the Revenue Commissioners are far too extensive. Many people consider the powers of the Garda are far too extensive. I remember when I was on that side of the House, there was a long debate about allowing the Garda with reasonable cause to arrest without warrant IRA people and other subversives who were virtually in the act of committing serious crimes like murders, and so on. The view was expressed from the benches now occupied by us but then occupied by the Fine Gael and Labour Parties that, in general, arrest without warrant was quite wrong, that the principle was wrong, and that the powers given to the police were too extensive.
Where the police are concerned, and where subversion is concerned, we are dealing with serious crimes. In this matter we are dealing with merchandise marks which do not trouble the conscience of the majority of the people of Ireland at any given time. The fact that extensive powers may have been granted in the past to combat matters which were not very serious by any normal criteria does not necessarily mean they should remain that way forever. In the past seven years the world has moved on a great deal in its consideration of the extent of the powers which should be given to authorities generally over private individual citizens.
Many things which were acceptable seven or ten years ago are becoming increasingly unacceptable today. It no longer suffices to call in aid the fact that there is a precedent, because the rights of individuals are being and should be held in much higher regard today. Great efforts are being made by people on the international scene to uphold the rights of individuals as against the State. Criticism is sometimes aimed at people who endeavour to do that. It is no longer sufficient to say that powers such as this existed in the past. If we are to use that argument, we might as well say that what has been happening in Russia for the past 60 years justifies what is happening in Russia today, or that what happened in Northern Ireland in 1971 would justify something similar happening there today. I do not think that is a valid line of reasoning. Where it is proposed to confer powers of the kind contained in this section, they should be looked at not in the context of the fact that they existed ten or 20 years ago but in the context of whether they are necessary and appropriate in May, 1977. Many people hold that what might have slipped through ten or 20 years ago should not slip through today and that perhaps the rights of individuals should be more carefully looked at and protected where necessary than may have been the case in the past.
I do not accept the Parliamentary Secretary's argument that because an officer does not have to have reasonable cause to enter a premises, to take away books and inspect the records that, therefore, the innocent trader is protected and that suspicion would fall on him if an inspection were made only with reasonable cause. It will fall on him anyway whether or not there is reasonable cause. It would be far more equitable if the inspections allowed under subsection (3) could only be carried out with reasonable cause.
Amendment put and declared lost.
Question proposed: "That section 16, as amended, stand part of the Bill."
Is the Parliamentary Secretary satisfied that it is necessary to have these very extensive powers which are more than the Gardaí Síochána would have in investigating crime and which are equal to if not more than what the Revenue Commissioners possess?
Obviously if one is seeking to check the accuracy of statements made to the public about individual goods it is necessary that the enforcement authorities should have access to the premises in which these goods are stored or produced so that the process of production, the ingredients or any other relevant matter which has been the subject of a statement to the public by the seller can be checked. If this power did not exist it would be very difficult to check on whether claims made were true and in this instance, I refer to areas where services may be required after the initial contract.
The powers in this section reproduce exactly the powers that are in operation under the Merchandise Marks Act, 1970. The proof of the pudding is in the eating; to my knowledge no problems have been caused by the existence of these powers in force under that Act and I am confident that problems will not be created by the powers in relation to this Bill. Deputy O'Malley has repeatedly stated that this Bill is very close to the Merchandise Marks Act, 1970.
Naturally I am concerned that these powers will be exercised in a reasonable manner and with reasonable cause and, while I do not agree with the Deputy's amendment that an offence must be suspected before any of these powers are exercised, I would be prepared to consider an amendment to the effect that the powers may only be exercised with reasonable cause if this is considered between now and Report Stage to provide useful additional protection.
Is the Parliamentary Secretary saying that he agrees more or less with my amendment?
No. The Deputy's amendment said that an offence must be suspected. I am saying that perhaps the powers should only be exercised specifically with reasonable cause to carry out routine inspections without suspecting any offence, and that would be sufficient to meet the criterion of reasonable cause. If the Deputy's amendment were accepted it would mean that an offence would have to be suspected before any of the powers could be used.
We are making progress. We have come a bit of the road. I accept what the Parliamentary Secretary has said, that it is not necessary to suspect an offence. Further, I accept that if there is reasonable cause that will do. I suggest that my amendment be amended, deleting the words from "grounds" to "committed" and inserting instead "cause for their exercise".
What the Deputy has suggested will probably meet the case, but I should prefer to have the amendment checked and introduce it on Report Stage if that is agreeable.
That will be all right if it is done, but sometimes these matters tend to be forgotten. If the Parliamentary Secretary tells us he will not forget in this case I would be quite agreeable to his suggestion.
I have said already that I will consider an amendment on these lines between now and Report Stage.
The words "reasonable cause for their exercise" instead of the words from "grounds" onwards would seem to meet the point and I would be happy to agree to that. It is just a question of re-wording it in a slightly different way. The Parliamentary Secretary is right to agree with me that the powers are so extensive that they should be exercised only where there are reasonable grounds or cause for their exercise. He made the point that it should be open to the authorised officers of the authorities concerned to make inspections and see if claims being made in advertisements are being complied with, but I suggest it would be enough to see if such claims were complied with if there was a complaint from a member of the public and that it should not be an arbitrary or unilateral action on the part of an authorised officer to go in where there is no complaint.
I do not accept that. I believe that the facility must exist for routine inspection where no complaint or no suspicion exists, but I believe that these inspections should be carried out with reasonable cause for the purpose of enforcement of the legislation.
Big brother is getting bigger as we get nearer to 1984, but we have solved some of the problems. We will leave it at that so.
Question put and agreed to.
SECTION 17.
Amendment No. 42 was discussed with amendment No. 18 in the name of Deputy Desmond O'Malley and was agreed.
Unfortunately, I was not here when that was done.
It has been disposed of. Amendment No. 42a is an additional amendment in the name of the Minister, and amendment No. 43 in the name of Deputy O'Malley is an alternative. I suggest that the House debate amendment No. 42a and amendment No. 43 together.
I move amendment No. 42a:
In page 10, after line 48, to add the following subsection:
(3) (a) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence referred to in subsection (1) of this section, it may, at its discretion, on the application (made before the time of such imposition or affirmation) of any person who was summoned as a witness on behalf of the prosecution in the proceedings in which the fine was imposed and who suffered personal injury, loss or damage resulting, wholly or partly, from the offence provide by order for the payment of the amount of the fine or of a specified part of it as compensation in respect of the injury, loss or damage to the person making the application.
(b) An application shall not lie under paragraph (a) of this subsection in respect of any personal injury, loss or damage if proceedings claiming damages for the injury, loss or damages have been instituted in any court.
(c) Where the whole or part of a fine imposed under this section is paid to a person pursuant to this subsection and the person is awarded damages by a court in respect of the personal injury, loss or damage to which the payment related, the payment shall be deemed to be in satisfaction of so much of the damages as is equal to the amount of the payment.".
Many of the observations on the Bill which have been received have laid particular emphasis on the lack in the Bill as originally drafted of any provision for the payment of compensation to those who have suffered as a result of false or misleading trade descriptions or advertising. The omission of any such provision was initally intended for the reason that claims for compensation even when arising out of criminal cases are a matter for civil suit and it was felt that there could be problems by providing for civil claims in what was a criminal action.
However, it must be accepted that people who may be the victims of misleading advertising or misleading trade practices which it is intended to outlaw in this legislation may not have the resources or the time to take a civil action against the person who misled them and, if they do not do so, the seller who has mislead them and can be demonstrated to have done so by virtue of the fact that he will have been successfully prosecuted under this Bill would be able to get away without paying any compensation at all to the person who was injured most by his action, namely the consumer. I believe that this type of situation, namely where a civil action could not normally be taken by the consumer, is particularly likely to arise where the amount of money in question and the value of the goods in question is relatively small, and it is for that purpose, to meet this type of case, particularly where the amount would be so small as not to make it worthwhile for the consumer to seek a remedy through civil process, that this amendment, which will allow in limited cases for a civil claim to be made in the course of the criminal proceedings under this Bill, would be put into effect.
The effect of amendment No. 43 is much the same as the effect of amendment No. 42a. Amendment No. 42a is very much an afterthought on the part of the Minister or the Parliamentary Secretary. It was put in very recently, months after my amendment No. 43 went in. Amendment No. 43 is much simpler and easier to follow and is much clearer than amendment No. 42a and for that reason must be preferable to it. Amendment No. 43 reads:
In page 10, after line 48, to add a subsection as follows:
"(2) A court which finds a person guilty of an offence under the Acts or under this Act shall be entitled, in addition to any penalty imposed under subsection (1) hereof, to order such person to pay civil compensation in such sum as it thinks just to any other person whom it is satisfied has suffered a loss as a result of such offence".
There are certain difficulties and limitations which immediately spring to my mind on reading the Minister's amendment. The first one is that it applies only where a fine is imposed and it applies only to this extent, that part of a fine instead of to the State in the normal way can be allocated to the injured party. But, section 17 subsection (1), as it will be when the amendments are made, envisages imprisonment being imposed as a possible penalty, for not more than six months in the case of summary conviction and for not more than two years in the case of conviction on indictment.
The first weakness that strikes one about the Minister's amendment is that where the more serious cases arise there is no compensation payable. Obviously it is only in the more serious cases that imprisonment would be imposed in a matter like this. The great majority of offences that might be committed under this Bill or the earlier Merchandise Marks Act would probably be met by way of a fine, and it would be only in serious cases where serious damage was done to some person or body of persons or class of persons that imprisonment would be imposed, but it is in respect of these very cases, the serious ones, where there is a heavy loss involved or serious injury done, perhaps physical injury or death caused, that it would appear that compensation cannot be given.
Is it not more equitable and in accordance with the usual practices of our law that a fine is a fine and is imposed because of damage done to the public good, as it were, by a breach of the law but that civil compensation is separate in the sense that it should go direct to the injured party irrespective of what the compensation has been in regard to a criminal prosecution?
My amendment suggests that in addition to any penalty imposed, whether it be fine or imprisonment, civil compensation should be awarded by the same court. That is the practice in England since the passing of the Civil Evidence Act, 1972, in which section 1 empowers the court to make a compensation order. That applies to offences generally. It does not apply to merchandise marks or trade description offences. It was very slow in coming into English law and it is even slower coming into Irish law. It is a concept that has always existed in civil post-Roman law on continental Europe. It frequently mystifies the average layman that you have to have two separate sets of proceedings. If someone does something which is a criminal or a statutory offence and he is prosecuted and the offence caused damage or loss to another individual, that individual has to go back when the criminal proceedings are over and start a separate set of civil proceedings.
You do not have that on the Continent. You never had. The court always had power to compensate the injured party if it were satisfied it was proper and appropriate that he should be compensated. They have that now in England. All my amendment seeks is to establish that principle in relation to this Bill and in relation to the Merchandise Marks Acts generally. It is very limited, but I cannot do any more in the context of this Bill because a wider amendment would be out of order. The Minister's amendment is confined to cases where a fine is imposed and, if a fine is not imposed, there is no compensation. This rather long amendment of the Minister's was put in belatedly to meet the point I made.
The second point that strikes me is that it is only the offences referred to in subsection (1) that are covered and all offences under this Bill and the other Acts are not covered because subsection (1) covers only the case of a person guilty of an offence under this Act and such offences as involve trade descriptions under the Merchandise Marks Acts. Offences that do not involve trade descriptions are not covered and there can be no compensation. The Parliamentary Secretary's amendment is a kind of easy way out for someone who is convicted and fined, because the fine is imposed, but the State has to pay all or part of that fine to the injured party in compensation for the injured party's loss. It will suit those who break the law in this respect very much better to have a situation where, if they are fined, part or all of the fine will go to compensate the injured party, and the injured party has no other rights against them. If the fine were small, something in the region of £10, and the injured party has suffered £1,000 loss, all he can get is the £10 fine and he will be owed £990. There is nothing he can do about it.
My amendment is succinct and covers all the instances involved. It ensures the injured party will be fully and properly compensated. It applies to all offences under the Merchandise Marks Act and under this Bill. It is very doubtful, as I see it, if a breach of the Merchandise Marks Acts necessarily gives the right to a civil remedy. Frequently it does not. One of the reasons is that the Sale of Goods Act, 1893, is grossly out of date and the kind of remedies it allows frequently preclude a proper remedy for the kind of activity one should seek to discourage on the part of some traders who are not as principled as they might be. The kind of protections given in the 1893 Act are no longer appropriate in 1977. A different type of protection is needed, and the fact that an offence has been committed does not necessarily give rise to the presumption that a civil wrong, or tort, or breach of contract has been committed. It frequently may not be committed and the injured party has no right of action.
The proper way to meet that situation would be for the court to have the right to order whatever compensation is appropriate for the injury suffered as a result of the wrongful action of the defendant. That power is there in England in all matters under section 1 of the Civil Evidence Act, 1972, and it is something which should be introduced here. It would do away with the unnecessary prolongation of litigation in respect of the one set of facts or the one misdeed. My amendment is broader and simpler and easier to operate than the Minister's very long amendment, which is rather arbitrary in the things it excludes.
The trouble with the Deputy's amendment is that it is entirely unlimited in regard to the way in which it could be exercised. Take the situation where an individual is prosecuted for a criminal offence and a small fine is imposed; numbers of people who had nothing to do with the initial proceedings could turn up at court and claim similar compensation. The situation could arise that, in the implementation of this amendment, a person who was deemed to be worthy only of a fine for a criminal offence of, say, £10, could in that criminal proceedings find virtually out of the blue that a civil claim was brought by a whole lot of people who were not involved prior to the hearing of the court itself. In the same proceedings 40 or 50 people who had not been involved, who had turned up at the court and claimed to have been injured by the practice in question, might get civil compensation amounting perhaps to £100 each. That would be far in excess of the amount which for the criminal offence the court had decided was justified in terms of a fine. I believe this unlimited scope of Deputy O'Malley's amendment, unlimited both as to the amount of civil damages which may be granted in what is essentially a criminal proceeding and unlimited as to the number of people who may claim civil remedy and the time by which they may come forward with a claim, render the amendment impractical. I believe also that there are serious grounds for believing it would be unconstitutional, in the sense that a person may suddenly out of the blue find himself in jeopardy not just for a criminal offence but for a whole raft of civil claims for which he may not have been properly prepared in going into court. He may just be prepared for the criminal offence and could claim that such civil awards being granted in that proceeding against him was an unconstitutional proceeding. There is serious danger that this provision and the exercise of this provision would be found to be unconstitutional.
Deputy O'Malley said difficulty would be encountered where imprisonment was the penalty chosen for the criminal offence rather than a fine. That is true, but in cases where imprisonment—and these would be very rare cases, I believe—was decided by the court to be the appropriate penalty, it would be likely that the amount of which the injured party had been deprived by the action of the seller would be quite large. If the amount was large and the case was good, there is no reason at all why civil action in the normal way might not be taken and would not be taken by the injured party.
My amendment seeks to deal with cases where the amount of money would be so small that a civil action with all the expenses it involves would not be worth while. It is drafted in such a way as to be effectively confined to such cases, which I believe are the cases in relation to which a procedure of this nature is necessary.
The Parliamentary Secretary's reply is simply on the basis that too many people could be compensated, that perhaps most or all of the injured parties could be compensated under my amendment. That is a strange attitude for the Parliamentary Secretary to take. Surely he must agree that those who are injured by an action which is an offence under these Acts should be compensated civilly.
Civilly.
Yes.
By a civil claim.
If they have no right of action in civil law——
They would have. If they have no right of action in civil law this would not give them a right of action anyway.
It would give them a right to compensation——
You cannot get civil compensation if there has not been a civil wrong.
——if there is nothing in the Parliamentary Secretary's amendment which says there is a civil wrong.
There would have to be a civil wrong for Deputy O'Malley's amendment to be effective anyway.
Would the Parliamentary show me where in the course of his long amendment No. 42a the existence of a civil wrong, either in tort or in contract is adverted to or made necessary?
The existence of personal injury, loss, or damage resulting wholly or partly from the offence——
Yes, from the offence. That is it, not from a civil wrong.
The existence of such damage is in itself a civil wrong.
The existence of loss or damage is in itself a civil wrong— that is a great statement of law. In other words, all you would have to do is to get hurt and you can automatically recover damages. That may be the law of some other lands in regard to certain things but it is not the law of this land. You cannot recover damages simply because you suffer injury, damage or loss. There must be a breach of your civil rights. The person who injured you must have done so by way of tort or by way of breach of contract. If he does so otherwise, you have no right to recover. That is a fundamental part of the law of this land.
What gives rise to the right of compensation here under 42a is not, as the Parliamentary Secretary alleges, the existence of a civil wrong; it is, as he quoted and as I quote now, the commission of an offence under the Merchandise Marks Acts or this Bill. There are many offences under this Bill and under the Merchandise Marks Acts, which are not civil wrongs. There is nothing in our civil law, for example, about marking orders on goods or about advertising orders or definition orders. The breach of these orders is not a breach of our civil law and is not a civil wrong. The question of misleading advertising is not as it is here, that where there is misleading advertising there is an offence on the civil side; there has to be actual misrepresentation which is not innocent and which causes loss, and which is far less extensive than the provisions of this Bill. The definitions, for example, of false trade descriptions here in this Bill are infinitely wider and more extensive than the kind of misrepresentations which would give rise to civil compensation or a right to civil compensation, for example, under the Sale of Goods Act of 1893.
The Parliamentary Secretary, if he is going to insist on this amendment, is therefore excluding a very large number of people, because the only people who will be entitled to compensation, no matter how seriously they are injured or damaged, will be those who will be called by the prosecution as witnesses in a criminal case. Only one person may be called in these circumstances, but there might be 50 people seriously damaged or injured by a particular act which is an offence under these Acts. Fifty people who perhaps are seriously ill as a result of eating something which was a breach of a marking order might go to the Director of Consumer Affairs or the local authority or the Minister to complain and to say: "Please bring a prosecution against this man who sold it and have him dealt with by the courts, and we are now giving notice that we want to apply for compensation as well for the injury which we suffered.". If the director or the local authority takes proceedings the prosecution need call only one man to prove that, because that is all that is necessary. The court will not hear any more if it is satisfied that the evidence of one man established that an offence did exist, unless the prosecution want to take separate proceedings in respect of the whole 50 offences and call them all, but that would be very unusual. If they call only one then only the one who is called as a witness by the prosecution is entitled to compensation and the other 49 who are there to back him up, as it were, get nothing. That is quite unfair and quite arbitrary, because there will be all sorts of accusations afterwards by the 49 who did not get compensation that there was favouritism shown in the case of the prosecution witness, that he got £1,000 compensation for his injuries and that the rest of them are whistling and getting nothing.
My amendment does not mean that everyone who seeks compensation is going to get it. The amendment states:
A court . . . shall be entitled . . . to order such person——
that is the defendant
——to pay civil compensation in such sum as it thinks just to any other person whom it is satisfied has suffered loss as a result of such offence
The only way that the court can be satisfied is by evidence being given, not necessarily by a prosecution witness, but the people concerned would have to come in and give evidence on oath. If there were 50 people injured or damaged by a particular action of a defendant then those 50 people should be allowed to come in, make their application and give evidence that they were injured or whatever it is. As it stands in the Parliamentary Secretary's amendment, only one of them or the small number who are called by the prosecution as witnesses would be able to get compensation. That is very unfair. There may be cases where a large number of people are injured or otherwise suffer loss or damage, and the Parliamentary Secretary seems to imply that if there is a large number it would be unfair to the defendant to compensate them all. That is not right. If he injures a large number of people he should have to compensate them. He may not be able to do it, but it is their hard luck if he becomes bankrupt or goes into liquidation.
I point out again that it is not sufficient under Irish law to suffer injury in order to be entitled to civil compensation. It has to be actionable. It has to be, therefore, either a tort or an actionable breach of contract, and there are a huge number of offences under this Bill and under the Merchandise Marks Acts of 1897 to 1970 which are not actionable offences under civil law and which, therefore, do not in themselves give rise to a right to compensation. The only right which the injured people would have in a huge number of instances is the right under this amendment to apply for or seek that compensation as part of the criminal or statutory or summary proceedings taken against the defendant. That is the way they do it in almost every other country in the world except Britain and Ireland, and the British have now brought in this concept in 1972. We still have not got it. I tried to introduce it in respect of this, but unfortunately it has been so totally confined now by what the Parliamentary Secretary seeks to do in his amendment that it will be of use in practice to only one person in respect of each offence committed even though there may be 50 people injured or otherwise damaged by that offence.
The Parliamentary Secretary surely will agree that it is desirable that those who are injured would have the right to be awarded compensation, but not in a slot-machine fashion by just getting up and saying they are injured. They would have to satisfy a court and the court would order such a sum as it thought just to be paid to any person whom it is satisfied has suffered loss. Those words imply the court is making a judicial decision. The court can be satisfied about the facts only after hearing evidence on oath. Therefore that presupposes that that evidence would be given, but not necessarily given only by a prosecution witness where one witness may be enough to prove an offence even though there were 50 people injured.
Carrying through criminal proceedings against people for breaches of this legislation would be rendered very difficult indeed if an unlimited number of people could virtually walk in off the side of the street to any court which was bringing a criminal case against a party who has put out a particular advertisement and claim there and then under oath that they had been injured. In respect of each one of these claims, the number of which would be quite unlimited, the defendant would have to put forward rebutting evidence. In effect the criminal case would be dwarfed by an unlimited number of people coming in and making civil claims in the middle of these proceedings and the cases would go on for a very long time and the enforcement of the criminal law in court in this area of law would become virtually impossible. There is a need to limit this resort to persons who are directly involved, namely the witnesses.
The Deputy claimed that there was some discrimination involved, in that only witnesses would benefit under this provision. The situation is that people who are not witnesses still have the remedy open to them that they had in normal civil law. The person who is a witness and does get an award under this provision in my amendment will have the amount of any award deducted from any civil award he might get through the normal civil processes otherwise, which is not the case with people who do not get this award in a criminal hearing.
The Parliamentary Secretary is still under the misapprehension that if someone suffers loss that person would have a right of action in civil law. Until such time as I can disabuse him of that misapprehension he is not going to understand the difficulties he is creating. The suffering of loss, damage or injury does not give rise in Irish law per se to a right to compensation in civil law. The reason the Department decided to put in this amendment in reply, as it were, to mine which had been put in three or four months earlier—I suppose there was a political objection on the part of the Minister to accepting an amendment from me, and therefore he tried to put it in a different and much more confined form—is that there is not a civil right or remedy for dealing with these matters. If what the Parliamentary Secretary thinks is the case, that injury, loss or damage gives right to a civil remedy, there would be no need for this. Everybody who wanted to could take that civil action. It is precisely because there is not that right that it is necessary to put in this.
The other reason is that it prevents duplication of litigation. It is desirable in Ireland, as in nearly every other country in the world, that there should be only one case about a particular thing and it should not be necessary, as it is in Ireland and was in Britain until 1972, to take two series of actions, because the only people who are gaining by that are lawyers. The public, the injured parties and even the offending party are losing by it. The offender is paying on the double. He is paying his own and his opponent's civil costs the second time. In France, Germany and most of the American States they have one hearing and they dispose of the matter. There is now power in England to do that. Why should we be so behind all the time and be so foolish that we still insist on two law cases, two sets of litigation, about one event?
If somebody drives a motor car very recklessly, for example, and knocks down and injures someone very seriously, he will be charged with dangerous driving causing serious bodily harm. The case will be fought out in the Circuit Court normally before a judge and jury for perhaps one, two or three days and all the ins and outs of the case will be gone into in great detail and at the end of that the jury will decide whether or not the defendant is guilty of the offence with which he is charged. If the person is found guilty the judge will impose a penalty that seems appropriate or just. When all of this is over the whole thing starts again and the injured party must again start proceedings, against someone who has been found guilty of a serious criminal offence with a high degree of proof, if the man or his insurance company denies liability. In other countries the whole lot is done together. It is much more sensible. The injured party gets compensation at an early period. There is no terribly long delay, and all the expense that our method involves. We have a farcical situation here, that for an ordinary simple case of running down and personal injury being caused, it is necessary to employ four senior counsel, two on each side, two junior counsel, one on each side, and two solicitors, one on each side. That amounts to eight lawyers for a simple everyday thing like a motor car running into a pedestrian, a cyclist or another motorist. Eight lawyers spend two or three years trying to fix the compensation for the injured party, and that three-year period would not even begin until after the criminal proceedings have finished. It is wrong for the Parliamentary Secretary to argue to perpetuate that kind of situation. Let us do what other countries do and be sensible about it and not have all this nonsense where the only beneficiaries are the lawyers. Let us get things over with together.
This case is different to a running down case, where there is the civil tort of negligence that gives rise to a right of compensation. In the instances to which we refer, because our law is so out of date in relation to consumer protection, there is no civil remedy available to the injured party in many of these breaches of these Acts, and therefore it is quite wrong for the Parliamentary Secretary to say that if they do not get compensation in the criminal case they can take civil action. They cannot take civil action. They have no right to take the action, and the right of action in the Parliamentary Secretary's amendment is given not because there has been a breach of a civil right, not because there has been a civil wrong done, or a breach of contract committed, but it arises simply from the fact that an offence under these Acts was committed.
It is not because of a civil wrong but because an offence has been committed. It is not even every offence, but only offences referred to in subsection (1). If the Parliamentary Secretary looks at the offences set out in subsection (1) he will see that it only relates to this Bill and to offences under the Acts involving trade descriptions, but it does not apply to offences under the Merchandise Marks Act generally. I do not know why that should be so, but that will be the result of the Parliamentary Secretary's amendment, if passed. It will give rise to serious injustice and to arbitrary compensation for particular individuals and the total absence of compensation for others who may have been more seriously injured by offence concerned. The Parliamentary Secretary should not press his amendment, which will obviously cause a great deal of difficulty, unfairness, inequality and inequity, but should accept the much simpler and broader amendment that I put down many months before his amendment was put down, to the effect that anyone who was injured as a result of the offence concerned and who satisfies the court that he was so injured and that he suffered loss that can be measured in financial terms will be awarded compensation by the defendant or the offending party in such amount as the court in all the circumstances, having heard both sides, deems just. It is perfectly simple, and that is the way it is done everywhere else. There is no reason why it would not work here. It should be given a chance to work.
Nearly everyone who commented on this Bill commented that the primary fault in it was that it created a whole new series of offences that traders, advertisers and others could commit but it gave no right of compensation to those injured. Because of these comments and because of the fact that I put down an amendment giving that right of compensation, the Parliamentary Secretary or the Minister came along months afterwards and put down this rather laborious amendment that we are now discussing, to give a very limited right in certain circumstances in respect of some offences but not others, to some people but not to the great majority of people who were damaged, and to confine the amount of compensation to an amount that would not exceed the amount of the fine, and to give no right of compensation at all in very bad cases where the court felt it appropriate to impose a term of imprisonment. I have never seen a more unsatisfactory amendment. We would be much better off without this altogether, so that there would be no right of compensation, rather than to have the terribly limited and terribly arbitrary right of partial compensation that is given to a small proportion of injured people by the Parliamentary Secretary's proposed amendment. I ask the Parliamentary Secretary on reflection to withdraw this amendment and to agree to amendment No. 43.
I cannot accept the amendment proposed by the Deputy. I wish to press amendment No. 42a.
It is significant that the Parliamentary Secretary has not been able to contradict one word of what I have said, and it seems incredible——
I have already done so.
——that he would now agree by default, that this grossly unsatisfactory situation will be created by the acceptance of this amendment. The Parliamentary Secretary does not deny that in bad cases where there is imprisonment there will be no compensation, and that only the people called by the State as witnesses will get compensation. The Parliamentary Secretary regards that as satisfactory.
I have already dealt with these points.
The Parliamentary Secretary may consider that he has dealt with them, but he is the only one who so considers. I have heard nothing from the Parliamentary Secretary to contradict this. It is there in black and white, there is no compensation in a bad case where there is imprisonment, but if it is not a bad case there is. The compensation is limited to those who are called by the prosecution to give evidence. The other 50 or 100 people who may be far more seriously injured get nothing by way of compensation. The fact that there is no civil remedy for many of these offences does not concern the Parliamentary Secretary at all. He is under the misapprehension that Irish law allows a remedy where there is an injury and that it is not confined to a civil wrong.
This is an absolutely ludicrous amendment. It does nothing at all of any value for the injured consumer because perhaps only one in 50, or one in 100, will get compensation in a particular instance. Then their compensation is limited to the amount of the fine involved. A justice or a judge might well take the view that, from a criminal point of view, the matter was not too serious and could be met by a £5 or £10 fine, but that from a civil point of view it was very serious, and that there should be £1,000 compensation because the man had to get half his stomach removed due to being poisoned, or something like that.
It is extraordinary that the Parliamentary Secretary is prepared to agree by default that this amendment of his has all these very serious defects and just force it through by weight of numbers. There are shades of Bula about this at the moment. Unfortunately, the Parliamentary Secretary is learning from his master although, God knows, he does not see him very often because he spends most of his time on the other side of the world.
Amendment put.
The Committee divided: Tá, 63; Níl, 57.
- Barry, Peter.
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bermingham, Joseph.
- Bruton, John.
- Burke, Joan T.
- Burke, Liam.
- Byrne, Hugh.
- Clinton, Mark A.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Coughlan, Stephen.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Dockrell, Maurice.
- Donnellan, John.
- Dunne, Thomas.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- Fitzpatrick, Tom (Cavan).
- Gilhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Halligan, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kelly, John.
- Kenny, Enda.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerald.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Connell, John.
- O'Donnell, Tom.
- O'Sullivan, John L.
- Pattison, Séamus.
- Reynolds, Patrick J.
- Ryan, John J.
- Spring, Dan.
- Staunton, Myles.
- Taylor, Frank.
- Thornley, David.
- Timmins, Godfrey.
- Toal, Brendan.
- Tully, James.
- Allen, Lorcan.
- Andrews, David.
- Barrett, Sylvester.
- Brady, Philip A.
- Brennan, Joseph.
- Briscoe, Ben.
- Carter, Frank.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Crinion, Brendan.
- Cronin, Jerry.
- Crowley, Flor.
- Daly, Brendan.
- Davern, Noel.
- de Valera, Vivion.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, Hugh.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Healy, Augustine A.
- Brosnan, Seán.
- Browne, Seán.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
- Loughnane, William.
- Lynch, Celia.
- MacSharry, Ray.
- Meaney, Tom.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Connor, Timothy.
- O'Kennedy, Michael.
- O'Malley, Desmond.
- Power, Patrick.
- Smith, Patrick.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Browne.
Amendment declared carried.
Amendment No. 43 has been discussed with amendment No. 42a.
I move amendment No. 43:
In page 10, after line 48, to add a subsection as follows:
"(2) A court which finds a person guilty of an offence under the Acts or under this Act shall be entitled, in addition to any penalty imposed under subsection (1) hereof, to order such person to pay civil compensation in such sum as it thinks just to any other person whom it is satisfied has suffered loss as a result of such offence".
Notwithstanding amendment No. 42a, amendment No. 43 is by far the most preferable way of dealing with the matter. The amendment which the Parliamentary Secretary has forced through, even though he admitted it has enormous defects and is very circumscribed, is not going to solve the problem. What every commentator on this Bill saw as desirable was a reasonable provision in our law for the compensation of consumers who were damaged by an offence under this——
The Deputy appreciates that this amendment has already been discussed. Does he wish the amendment to be put?
Yes.
Amendment put.
The Committee divided: Tá, 57; Níl, 64.
Tá
- Allen, Lorcan.
- Andrews, David.
- Barrett, Sylvester.
- Brady, Philip A.
- Brennan, Joseph.
- Briscoe, Ben.
- Brosnan, Seán.
- Browne, Seán.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, Hugh.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Healy, Augustine A.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
- Loughnane, William.
- Lynch, Celia.
- Carter, Frank.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Crinion, Brendan.
- Cronin, Jerry.
- Crowley, Flor.
- Daly, Brendan.
- Davern, Noel.
- de Valera, Vivion.
- Dowling, Joe.
- Fahey, Jackie.
- MacSharry, Ray.
- Meaney, Tom.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Connor, Timothy.
- O'Kennedy, Michael.
- O'Malley, Desmond.
- Power, Patrick.
- Smith, Patrick.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Barry, Peter.
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bermingham, Joseph.
- Bruton, John.
- Burke, Joan T.
- Burke, Liam.
- Byrne, Hugh.
- Clinton, Mark A.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Coughlan, Stephen.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Dockrell, Maurice.
- Donnellan, John.
- Dunne, Thomas.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- Fitzpatrick, Tom (Cavan).
- Flanagan, Oliver J.
- Gilhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Halligan, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kelly, John.
- Kenny, Enda.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Connell, John.
- O'Donnell, Tom.
- O'Sullivan, John L.
- Pattison, Séamus.
- Reynolds, Patrick J.
- Ryan, John J.
- Spring, Dan.
- Staunton, Myles.
- Taylor, Frank.
- Thornley, David.
- Timmins, Godfrey.
- Toal, Brendan.
- Tully, James.
Tellers: Tá, Deputies Lalor and Browne; Níl, Deputies Kelly and B. Desmond.
Amendment declared lost.
Question proposed: "That section 17, as amended, stand part of the Bill."
I shall not attempt to discuss again Deputy O'Malley's amendment but it seems to me that the Parliamentary Secretary, in not accepting the amendment, has missed an opportunity of making a very significant, far-reaching and beneficial change in our legislation.
However, the section as it stands now is in conformity with the standard practice of our legislation governing matters of this sort with, perhaps, the difference that a court can now take into consideration, in deciding on the level of a penalty, any action which might have been taken by the defendant by way of corrective advertising. This is an improvement, but one would have liked to see the section going a great deal further. It would be a very effective impediment to false or misleading advertisements if the person inserting such advertisements would be liable to pay compensation for any damage that might have been caused. The section now is entirely punitive. It simply has the effect of ensuring that anybody who transgresses by way of having resort to misleading advertisements will be punished by way of being ordered to make a contribution to the Exchequer.
One wonders whether, in this day and age, this is going far enough. As I have said already, advertising today is a very powerful medium. The techniques which have been developed and the methods used can have tremendous impact on the public mind and consciousness. It is vital in terms of the general well-being and welfare of the community that this powerful and relatively new medium which is at the disposal of commercial interests be controlled rigidly and carefully. This Bill goes a certain way towards the establishment of some such control, but we must recognise that the people who use unscrupulously the power of advertising and without caring whether they cause damage to others, should be prevented by every means possible from engaging in such conduct. In many cases fines at the levels set out in section 17 May not be of any great significance to such people when compared with the benefits they may gain from their advertising campaigns.
Modern thinking on these matters is pushing us towards a new approach, an approach which would demand that where an advertiser recklessly or without due consideration inflicted damage on a member of the public or a section of the public that he should directly compensate the person or persons so damaged. The Parliamentary Secretary is missing an opportunity by not availaing of this new type of legislation to incorporate this new principle into legislation.
He could resort to a device I used when I was bringing in legislation dealing with negligence generally. I wanted to correct a situation which had prevailed for decades whereby a local authority could not be sued in respect of damage arising from nonfeasance— in other words, if a local authority did not do something and someone was injured as a result of their not doing something the person injured could not sue the local authority. If a local authority did something negligent and a person was injured as a result of that, that person could sue for damages on the basis of negligence on the part of the local authority because it was a misfeasance on the part of the local authority. But the law was that a local authority could not be sued because it did not do something. A simple illustration would be the case of a large hole in a road which the local authority should have repaired and did not repair and someone was injured as a result of driving into that hole. The injured person could not sue the local authority because it was a question of nonfeasance, not misfeasance, and I wanted to remedy that situation and I made provision that the local authority would be liable in such circumstances.
That proposal was resisted very strongly because it was felt that it was opening the floodgates and would render local authorities liable to an insupportable burden of liability in the same way as the Parliamentary Secretary would maintain he would be opening the floodgates under section 17 if he did what I suggest he should do. I met the particular dilemma at that time by introducing this reform for a limited period. I think it was three years. The provision was expressed to last for a period of three years. In the interim records would be kept of what happened as a result of the provision. I was successful in having that particular provision accepted on the basis that it was introduced for a temporary period. As a result of the experience gained during that period the Oireachtas could decide whether to repeal the provision or make it part of permanent legislation.
That procedure could have been adopted by the Parliamentary Secretary in this case. Even if he were not prepared to go the whole distance with Deputy O'Malley he could bring in a limited, qualified, restricted, defined provision for an experimental period, operative for three years, and administratively ensure that during that experimental period records would be kept of the damages awarded and, if they turned out to be uncontrollable and insufferable, or intolerable, then naturally the Oireachtas could in its wisdom decide to set aside the provision. If, on the other hand, it turned out to be reasonable and there was no great rush of disastrous judgments then the proposal could be made part of permanent legislation. Perhaps the Parliamentary Secretary would consider something of that nature before he finally wraps up this Bill. It would be well worth while, because if an innocent member of the general public is put to great loss by reason of an injurious advertisement it is no great consolation to him to know that the person concerned has been fined or even jailed. One would like something more positive and more concrete by way of compensation to the person who suffered damage. In all these areas there is a great temptation to play safe and not branch out into new, unknown and undefined territory and I am suggesting this mechanism to the Parliamentary Secretary as a way in which he could, perhaps, attempt something new and do something different and, at the same time, play reasonably safe by introducing the provision for a limited period.
There is another aspect, and that is that the fines are stated fixed amounts. Nowadays, with inflation galloping on at the rate it is, one would hope that some new mechanism would be found for adjusting the penalties in statutes at regular intervals without re-enacting or amending every statute separately. I notice in this section the fine the District Court can impose is £500. It is not so long since the Supreme Court fixed £100 as the maximum fine it would regard as within the competence of a District Court to impose. Apart from anything else it shows the way inflation is raging and the way the value of money is falling.
It is now written into this statute— and it is probably the first time it has been done—that the maximum penalty in the District Court can be £500. I know from experience in other legislation that it is now the view of the Attorney General that £500 is acceptable as the limit of the jurisdiction of the District Court in imposing penalties. Presumably the Attorney General believes that that is the sum which the Supreme Court will find acceptable as the limit. It represents a significant step forward. Statistics will show that £100 at the time the Supreme Court gave its decision would now be equivalent to less than £300 so that this statute is going further than would be justified by the fall in the value of money. I wonder if the Parliamentary Secretary has had any advice as to whether that £500 would be acceptable as appropriate to summary conviction.
However, this does raise a very general question throughout the statutes. Scattered through all the statutes are specific figures as maximum penalties for different offences. Sooner or later we will have to get around to having an omnibus piece of legislation which will automatically adjust all these maximum penalties to keep them in line with changes in the value of money. I would conclude on the section by suggesting to the Parliamentary Secretary that he would consider this idea of introducing a very restrictive, very qualified provision for a limited period to enable the courts to award damages in addition to imposing fines on people who are found guilty of an offence under the provisions of this legislation.
I have listened with interest to what Deputy Haughey has said. I have myself considered for some time now that the concept of introducing measures in legislation for a limited period as an experiment is in general a good one and one for which I think there is room in our legislative practice. However, I do not think it is appropriate in this case. There is a definite difference between the analogy he gave and the situation in this Bill. In his analogy the parties to suffer detrimentally from the enactment of this experimental provision were public authorities, and I think it is, shall we say, somewhat more acceptable for the Government to introduce experiments which may be to the detriment of other parts of the Government machine, such as local authorities, than it is for the Government to undertake experiments where those who are likely to suffer detrimentally, if anyone is to suffer detrimentally during the course of that experiment, are, as would be the case in this legislation, private individuals. I would not be as inclined therefore to follow Deputy Haughey in what I regard as a generally acceptable concept of an experimental temporary provision in a case such as the one envisaged in this Bill, where those who would suffer if the experiment turned out badly would not be the Government or their agents but private individuals quite independent of the Government.
I was also interested in what the Deputy had to say about fines. I have inquired whether it might be possible to provide some means whereby these fines could be kept regularly up to date without the necessity of complete re-enactment of statutes, and I found that this would not be acceptable as a procedure to adopt, that one would need to follow the normal practice of enacting a new penalty section in a full Bill. However, there is something to be said for the suggestion Deputy Haughey made of perhaps an omnibus penalty Bill which might be introduced from time to time updating all penalties across the whole range of legislation, but of course this is not a matter for which I would have primary responsibility.
I am happy that the figure of £500 is appropriate and in order in this context and that is because the Bill has been drafted in consultation with the Attorney General's office, including the aspect of the Bill affecting penalties.
Section, as amended, put and agreed to.
SECTION 18.
I move amendment No. 44:
In page 10, subsection (1), line 49, before "this Act" to insert "the Acts involving a trade description or under".
The purpose of this amendment is to enable officers of local authorities to prosecute for the use of illegal trade descriptions. At present Dublin Corporation have power to deal with matters under the weights and measures legislation. They also have powers in relation to quantity marking, prescribed sizes and other aspects of this general corpus of legislation which are very similar to the specific matter of the illegal use of trade descriptions.
It was represented to us by Dublin Corporation that in the course of their operations they found it necessary to take prosecutions for trade descriptions as well as the matters for which they already have competence, and that in the absence of this power the only recourse they had was to the common informer procedure where the inspector who might wish to prosecute in respect of a trade description, while he would be able to prosecute in the normal way as a public authority would have power to prosecute in respect of other matters in the general area of merchandise marks and weights and measures legislation. It is to extend the powers of Dublin Corporation and other local authorities involved in this field to trade descriptions that we are introducing this amendment.
We have no objection whatever to this amendment. I will have something to say about it when we come to the section. If, as the Parliamentary Secretary says, Dublin Corporation are under a disadvantage at the moment in implementing legislation because of the outmoded procedure which is the only one available to them, then the Parliamentary Secretary is absolutely correct in making this change to extend the power which this Bill gives to the Minister and county councils or corporation officers to institute proceedings for offences under this Bill to the other Acts to which the Parliamentary Secretary has referred. Therefore we have pleasure in agreeing to the amendment.
Amendment agreed to.
Question proposed: "That section 18 as amended, stand part of the Bill."
In accepting the amendment I said we welcomed it. There will now be power for the Minister or local authority officers to bring proceedings under this Bill when enacted and under the Acts involving trade descriptions. Should we not consider putting some restriction on the manner in which the council of a county council or the corporation of the county or other borough in which an offence is alleged to have been committed may bring the prosecutions? Does the wording of the section mean that it will have to be one of those full-scale, formal under seal procedures to which local authorities very often have to resort to do anything of significance? In local Government law there are many old practices and procedures handed down to us which mean that for the simplest thing to be done a great panoply of Acts have to be invoked and seals produced and Lords Mayor and burgesses paraded and all that sort of thing. Are we in danger of involving ourselves in that sort of situation by using the words: "or by the council of a county or the corporation of a county or other borough in which the offence is alleged to have been committed"? In other words the section seems to indicate that only the full council or corporation can institute the proceedings. I would have thought that the inspector or an appropriate officer appointed for the purpose would be enabled to do so.
Would the County Management Act not cope with that problem? Would the powers of the county manager acting for the council not get over this problem?
I am not sure. I am not an expert on local authority law but, as the Parliamentary Secretary knows, there are certain things which the manager can do as managerial functions and there are certain other things certainly where property is involved, that only the council can do and which have to be done in the name of the council, where resolutions have to be passed and so forth. I am sounding a warning note. I am not being dogmatic, but I am wondering if this wording will mean that resolutions of the council and the full panoply of the council would have to be involved. Elsewhere in the legislation we talk about the officers of these bodies but here we use the words "the council" or "the corporation". I would have thought that some wording like "proceedings in relation to an offence under this Act may be brought and prosecuted by the Minister or by a designated officer of the council" would seem to obviate the danger that might be involved in this. Perhaps I am wrong. Perhaps there is no problem because this wording may have a certain connotation in local government law which I am not aware of. It seems to me that it would involve the entire council, or corporation as the case may be, deeply.
I do not think the problem that the Deputy has mentioned will arise. I refer him to section 6 (1) of the Merchandise Marks Act, 1970, where the precise wording that we are using here in section 18 (1) of this Bill is used. It says that proceedings in relation to an offence under that Act may be brought and prosecuted by the Minister or by the council of the county or corporation of the county or borough in which the offence is alleged to have been committed. I have heard no complaint of any problem in relation to the enforcement of the 1970 Act by the local authorities, who have an active role in this area by virtue of the wording which was used in that Act and which is now being reproduced in this form.
The Parliamentary Secretary does not entirely reassure me. The very fact of him going back to that 1970 Act and quoting the words from it reinforces my suspicions about this. It is quite clear that the wording has simply been lifted out of that other Act——
That is right.
——and reimposed here. That does not mean that the danger does not exist. The Act has been in operation, admittedly, since 1970 but it may not have been tested. Very often these things last for quite a while and it is only when the issue is big enough and what is involved is important enough that it is worth the while of the litigants concerned to test the validity and the legitimacy of the Act.
In order to get over the matter I will undertake to seek advice on the point raised by the Deputy between now and Report Stage, although I do not think there is any problem. The fact that no problem has arisen under the 1970 Act would indicate that I am correct. It is worth investigating anyway.
I agree.
Question put and agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
This is a standard provision in Acts containing provision in relation to offences. It ensures that individuals will not be able to escape responsibility under the cloak of a body corporate for offences for which they may be personally responsible. It is a standard position and there is nothing elaborate about it.
Question put and agreed to.
SECTION 20.
I move amendment No. 45 :
In page 11, lines 25 and 26, to delete "prove its truth" and to substitute "establish that on the balance of probabilities the indication is true".
As it stands, this section places the onus of proof on the defendant in the case of virtually all matters which could be complained of under the Bill where the truth of any indication given is an issue. This section was included in response to the National Consumers Advisory Council's recommendation, at paragraph 70, chapter 1 of their report, that advertisers should be able to prove the validity of claims made. There has been opposition however, to the Bill and concern has been expressed particularly that conceivably the defendant in this case might have to to prove the facts that he was contending beyond reasonable doubt, which is the burden of proof normally applied in criminal as distinct from civil prosecutions. Therefore, in order to ensure that this unduly heavy burden should not fall on the defendant, it was decided to introduce this amendment. It is probable that in the absence of this amendment it would be the balance of probabilities burden that would have been imposed on the defendant anyway by the courts, but it is desirable to make it perfectly clear by an amendment to the statute that that is what shall be the case.
Progress reported; Committee to sit again.