Amendments Nos. 1 and 19 are related and therefore may be discussed together.
Consumer Information Bill, 1976: Committee Stage.
I move amendment No. 1:
In page 2, subsection (1), after line 17, to insert " `the Director' means the holder of the office of Director of Consumer Affairs established by section 9 of this Act;".
The purpose of this amendment is to make it easier to identify the provision establishing the Office of Director of Consumer Affairs. It appears that Opposition Deputy O'Toole's amendment and the Minister's amendment are similar so there is no reason why we should not accept amendment No. 1.
I move amendment No. 2:
In page 2. subsection (1), line 18, after "includes" to insert "houses".
I would like to know if houses are included in the definition section. It includes definition of goods, ships, vehicles and aircraft, land, things attached to land and growing crops, and I see no reason why houses should not be included under that definition. I would like to know if there is any technical or legal reason that would preclude houses from this legislation. The only case that I can find where houses were excluded is the Sale of Goods Act. 1893. The problem here is that there is a basic difference between legislation in the United Kingdom and legislation here in that in the United Kingdom it would seem that courts and court personnel may in reaching agreement consider the intention behind the legislation; there is what is known as "the spirit of the Act", which does not apply in this country. Here it would seem that the courts are obliged to come to a decision on the basis of what they see in front of them on paper as the Act. Therefore I see no reason why the definition should not include houses.
The Parliamentary Secretary and the Members of this House are aware of the enormous difficulties that we face as public representatives in dealing with matters on behalf of constituents who are all consumers. Indeed, much of the time spent in trying to solve these problems is wasted because there is no legal backing or legal protection and in many cases our efforts are futile. The purchase of a house is the major investment in so far as the average family is concerned. I have not had time to check with the household budget inquiry what proportion of the average family's income is absorbed in this, but at a guess I would say that between initial purchase, service and upkeep it is about 30 per cent of one's whole life income. Despite the importance of this in money and social terms, what do we find? When an opportunity is offered to a consumer of some protection, the consumer is not being given an opportunity to avail of this protection under this Bill.
To aggravate the situation, builders may not be registered. Anybody can build a house and offer it for sale and there is no check as to the standards applied. It is only at a much later date that the consumer discovers that he has been duped into buying and paying dearly for something which does not come up to his or her expectations. There are guarantees. There is a structural guarantee given by the Construction Industry Federation, but such guarantee has no teeth and there is no way in which that body can deal with recalcitrant members who fail to live up to the objectives set by the profession. Another baffling aspect of this is that this structural guarantee is for only a two-year period at present. The financing of a house goes on for possibly 25 or 30 years. I am talking about the ordinary individual, not the man who can fork out £50,000 or £60,000 immediately. I am talking about the person who buys a house and has to have it on mortgage. The guarantee lasts two years and the financing goes on for 15 times that period. Is it implied here that the fitness for purpose clause, about which we will be talking later, applies in the case of houses; or is it that after two years a house need not be fit for the purpose for which it was purchased in the first place? This is worth considering and it strengthens the case for having houses included in this definition.
A further difficulty here so far as the consumer is concerned is the question of inspection of houses. It is no secret in this country that the standard, particularly in joinery, does not come anywhere near the Irish standard specification as laid down by the Institute for Industrial Research and Standards. It is estimated that something in excess of 70 per cent of all joinery work is below that standard yet many of those houses are grant aided. If houses were included in this Bill this could be looked at and the matter could be rectified. There is also —this bears out the strength of my argument for having houses included— the practice here, and I presume this is a universal one, that where there are major developers in housing companies are set up specifically to develop sites they have purchased. The developer builds 100 or 200 houses on that site under the name of this new company. When the estate is completed the company are dissolved and the purchasers of those houses are left with their faults. In many cases they have no redress whatsoever because the company who were specifically set up for the development of that site have now been dissolved. There is nobody to go to even though the parent company are still in existence and have moved on somewhere else to repeat that performance.
This happens every day of the week. It is a major drawback. It is most unfair that consumers, the house purchasers in this case, should not be safeguarded against abuses which arise due to shoddy work, indeed, incomplete work in many cases and, as I have already stated, a poor standard of work in joinery. Those are some of the problems which face a consumer in purchasing a house, which is the major investment in his lifetime. I do not see why houses should not be included in this definition and also in the straightforward definition "goods attached to land." I do not see any reason, if a ship is included as goods, why a house should not be included.
The Deputy makes a very reasonable case to have houses included in the definition. In Irish law when we refer to land, houses are included. The Deputy made the case that in English law houses are specifically mentioned in their Acts and houses are not included when they talk about land. I agree that possibly the biggest investment that many of our people make in their lives is when they purchase a house and that with the continuously rising price of houses it is essential that they be covered under the Bill.
Houses sold in business, that is houses sold by description, "advertisements inserted by auctioneers or house agents" are included in the Bill. When estate agents or auctioneers insert the description of a house, whether it is a new house or a secondhand one, they must ensure that the description which they are given by the person for whom they are acting as agent, is correct. If it is found that it is misleading they come under the terms of this Bill. House sales by developers or large builders, as Deputy O'Toole mentioned, for example new houses in large housing estates, are included in "advertising and description" because most of these new estates, as we see in all the national and provincial papers, are advertised every week. All other houses which are sold by auctioneers or estate agents are included in the Bill as to their description and the advertising which auctioneers do in the course of their business. A private house sold by description by a private owner is not included.
The Deputy spoke about standards in housing and "fitness for purpose." Standards of housing are a matter for the Department of the Environment. Guarantees of contract in civil law are not proper to a criminal law Bill, which this Bill is. The case may be made again, when the Committee Stage of the Bill is discussed in the Seanad, but at this stage I cannot say it is likely that I would include houses. As I said, in Irish law when we talk about land we are including houses. I hasten to assure the Deputy and all Members of the House that houses are included under the Bill. It is important they should be.
Surely one could argue that one could quite easily envisage a situation where a private individual, which is not unknown to happen, would buy two or three houses, renovate them and then put them up for sale. He could include in a newspaper advertisement a description of the properties he proposes to sell. He may not necessarily be an auctioneer, an estate agent or a builder. He may not be registered at all. One often finds odd speculative individuals, many of them in regular employment, who decide to do a bit of investment on the side. Such a person buys a rundown property for £8,000 or £10,000 and spends £3,000 or £4,000 on it. He could do the work in his spare time and then offer it for sale for £15,000, £20,000 or £25,000.
A deal like this has often occurred in my constituency. It appears that the kind of consumer information made available by such an individual does not come within the scope of this Bill. I wonder if the Parliamentary Secretary could see her way, through her involvement in the Bill, or through consultations with the Minister, to having cognisance taken of that type of situation on Report Stage. Deputies receive substantial complaints on occasions from constituents who have either been conned up to their eyes or who have bought a major piece of property ranging from £12,000 to £50,000 and their redress is protracted litigation through the courts, very often against somebody who may be a person of straw, but who handled that particular property. That can mean the end of a lifetime of financial security for that person. If most of us own one, two or three properties during our lifetime that is probably the maximum of our involvement in terms of changing our homes.
It is essential that the scope of the Bill should be extended. I do not think that would give rise to any tremendous reactions. It was feared that, if this concept were broadened, some of the major construction companies would be very perturbed, but they are not. In any event, the advertisements of our major construction companies would be covered. The vast majority of our major construction companies are reputable and there is no worry in that regard.
We are starting again on the Committee Stage of this Bill. We have the considerable benefit of the discussions on Committee Stage which took place last March and April. The Bill will go through Report Stage and will go through Committee Stage in the Seanad where, presumably, the former Minister, Senator Keating, will be available to make observations. On our side of the House we have Deputy Bruton, who guided the Bill through Committee Stage. That was a testing experience between himself and Deputy O'Malley. Reading through the debates of 29th March, one can see why an amendment should be put down this morning by the Opposition. Therefore, I wonder if the Parliamentary Secretary could see her way to extending the scope of the Bill in this direction.
Deputy Desmond made the point that, if a person buys one or two or three houses and offers them for resale after spending a certain amount of money on them, he is not included under the terms of the Bill. If a private individual buys houses and renovates them for resale, then he is selling in the course of business. I think everyone would agree with that. Therefore he is covered by the Bill.
To include private sales other than that type of private sale in the Bill would be going against the whole principle of the Bill in that we are concerned in the Consumer Information Bill with sales in the course of business. However, as I said before, on Committee Stage in the Seanad I will be prepared to have a look at that amendment again and see whether it would be possible to include "houses".
I am sure the Parliamentary Secretary will agree there are many occasions on which it would be extremely difficult to prove that any individual, who may be a public servant, or a member of the Garda, or a Dáil Deputy, who buys a house and does it up and does not advertise it in the local newspapers, is formally engaged in trade or business under the Bill. He may do this intermittently. There are quite a number of individuals who do this both in public and private employment. Very often they are not caught for income tax. They dispose of the odd house now and again. Quite a number are landlords, even though they are not registered as landlords with the Revenue Commissioners. That is the kind of activity to which I am referring. It is in that area that the most trouble tends to occur.
If one is dealing with a big builder or a reputable auctioneer, one has automatic redress. I am talking about intermittent individual sales. You will always get the shady individual who is able to deal in property by word of mouth, as a cash transaction, with no public advertisement. He is very careful to avoid the consequences. He may be selling property which is riddled with dry rot. He may make a handsome profit of £8,000 or £10,000 and then he moves on to the next killing. In a major conurbation like the greater Dublin area, it takes Dáil Deputies, the Revenue Commissioners and the Garda some time before they can catch up with these individuals. If there was a clear indication that such individuals could have their ears clipped under this legislation, that would act as a salutary warning to them.
I do not want to press the matter unduly because the Parliamentary Secretary's approach is generally in the direction we want to go and we can consider the matter again on Report Stage.
While I appreciate the Parliamentary Secretary's willingness to have another look at this, to put it mildly I am confused on two issues. The Parliamentary Secretary said the legislation will cover builders and other people who advertise their wares, in other words, people who are in the business of building houses in a big or a small way and who advertise the kind of houses they are selling. She also said that if a person who is not a builder in the accepted sense builds or purchases one, two or three houses at different times and expends some money on them and sells them, that person will also come under this Bill.
That person does not advertise. He disposes of these houses by word of mouth. In towns of a certain size everybody knows so-and-so has bought a house, is doing it up, and it will be coming on the market. Therefore, there is no need to advertise. That is a private sale. The Parliamentary Secretary has reiterated that these are matters of trade and business.
As Deputy Desmond said, the individual who buys the house could be a Member of this House. He does up the house and resells it. As I am sure the Parliamentary Secretary is aware, there are people, possibly in her own city, who are not registered builders who build or purchase and sell houses. In many cases they could sell three or four houses a year. They do not advertise. Are those sales covered under this Bill and will the purchasers get any protection from the Bill?
I would recommend to the Parliamentary Secretary that she should look at it this way. To get over all our problems we should stick to the definition of "goods" in the definition section which states that "goods" includes ships, vehicles and aircraft, land, things attached to land and growing crops. For the life of me I do not see what difficulties would arise if houses were included under the heading of "things attached to land". We are not dealing with bicycles. We are not dealing with some small commodity of which hundreds of thousands are sold every year. We are dealing with houses and these are major purchases for which high prices are paid. To my mind it should not be impossible to include houses and have a very strict check on all sales of houses advertised or otherwise disposed of. To what extent does the Parliamentary Secretary envisage the terms of this Bill applying to sales outside of business and trade?
It is right the House should be so concerned about sales of houses. The Parliamentary Secretary has said she will have another look at this. Both Deputy Desmond and Deputy O'Toole have made the point very strongly that the purchase of a house is the biggest single transaction by any purchaser. It is no use saying to people who come to our clinics every week asking us to fill in forms for them or get houses for them that the houses will be awarded to themcaveat emptor. Needing houses so badly they would buy even though they may be suspicious and so it is vitally necessary to ensure that legislation will give them the fullest protection possible. We may have a glut of houses some day and we can then ease up. We cannot ease up at the moment because there are so many people looking for houses. It is a healthy sign that the House should show such concern about this and I have every confidence that the Parliamentary Secretary will have another look at this before a final decision is made.
Deputy O'Toole has raised the point once again of small builders who do not advertise houses for sale. They build three, four, five or more houses a year or over a certain period and offer them for sale. Obviously they are in the business of selling houses and making money on the sale of houses and they will, therefore, be covered under this Bill because, unlike the previous Act, a trade description whether it is in a handbill, a letter or an oral statement to a purchaser is covered and all such sales are included under this Bill. It is a descriptions Bill. It is a criminal measure. The principle is not to try to enforce against private sales for the good reason that it just would not be possible to enforce it. With regard to the contract rights of purchasers, as I said before, these are a separate matter. However, I hasten to assure Members that small builders who do not advertise will be covered by this Bill.
I know a case where the owner of a large licensed business trade has purchased a piece of land on which he has got planning permission to build five or six houses. He is building at the rate of one per year roughly. It is a sideline. Would that person be covered under this Bill?
In other words, the Parliamentary Secretary says all sales of houses will be covered.
Yes, other than the case where a person sells his own house to buy another house for himself because he is not selling in the course of business.
There is the person who buys a house, sells it, purchases another house, sells it and purchases another housead infinitum allegedly for himself. Will there have to be an element of multiplicity before he comes under the provisions of this Bill?
That would obviously be a borderline case to be decided by the courts.
A person who sells his house and buys another house for himself will not be covered. He may be covered under some other Act which enables him to bring his grievance, if he has a grievance, to court but could he bring his grievance under any section of this Bill?
Where a person is changing his house fairly regularly, not for the purpose of moving from one house to a better house but as a business enterprise, he will be covered if it can be established that it is a business enterprise.
Will it have to form the major portion of his income?
It could be a sideline?
He would come under the provisions of this Bill?
If I decide to sell my house—I am not engaged in houses as a trade or business—and I put an advertisement in the papers which gives a misleading or false description am I automatically covered?
This is where the major deficiency arises because there is the odd individual who will advertise a house in Dalkey, perhaps, with a magnificent view over the sea front and the prospective purchaser finds it is looking into the back of a reservoir. There are people who purchase sight unseen on the basis of a newspaper advertisement. It is an incredible situation but I have heard of it happening. Apparently, since it is a private advertisement containing a misleading description, it will not be covered by this Bill. I do not know to what extent it is appropriate in that context to describe this as a "Consumer Information Bill". A great many transactions are by private treaty. Surely they should be covered. One can, of course, take an action against the vendor but. since the position can be widespread, I believe protection should be accorded under this Bill to the purchaser. I am not giving away any secrets when I say that there was a reluctance, regrettably, on the part of the parliamentary draftsman to broaden the scope of the earlier Bill because of the disastrous Constitution we have.
I am sure the Parliamentary Secretary would be in favour of maximum protection for consumers. What is the difficulty in having houses included? Is there any legal difficulty or technical complication that would preclude houses? Or is there overlapping legislation in regard to what we are talking about? Why the reluctance, which I would guess is on the part of the Parliamentary Secretary, to have houses included in the definition? Is it a drafting problem? If it is, I would assume that it could be got over in time and by the exercise of grey matter. If houses were included it would get this problem out of the way and give protection to all consumers, purchasers of houses, right across the board.
We seem to be back to the question of whether houses are included and I said at the beginning that houses are included in the description under "goods" which include land. In Irish law when we talk about land we are in fact talking about houses. Therefore I see no problem, drafting or otherwise. This matter arose during my own reading of the Bill and the preparation for the Committee Stage today, whether houses were included because I am very concerned, like the Deputy, that maximum protection should be afforded not only to the consumer but also to the builder or whoever may be selling the house. It is in his interest as well as the consumer's that houses should be included.
Deputy Desmond spoke of the case of a person he knew who bought a house in Dalkey, I think, which was supposed to have a magnificent view of the sea and in fact looked into something totally different. My experience has been that if one goes out to buy an item of clothing, for instance, one looks at it and checks it or indeed, tries it on. If one is spending a great amount of money on something which will be the largest investment of one's life, such as a house, obviously it is up to the purchaser, and it would seem logical, that he should go out and ensure that a description given in an advertisement or statement is correct and that it has "a magnificent view of the sea". If the Deputy feels that a number of people in his own constituency may be prepared to accept the description given in private or in an advertisement in a national newspaper, they should realise that the State cannot do everything. We try to do as much as possible and give the maximum amount of protection which I think is given in this Bill but we must leave a certain amount to the private individual.
I know that the Minister must table amendments if amendments are to be tabled but could we have another look at this on Report Stage?
Yes, if the Deputy feels that would help.
I move amendment No. 3:
In page 2, subsection (1), line 20, to delete "and Commerce" and to substitute ", Commerce and Energy".
This amendment is necessitated by the recent transfer of responsibility for energy matters to the Minister for Industry and Commerce. The result is a change in title. This amendment should present no great difficulty.
I move amendment No. 4:
In page 2, subsection (1), line 22, before "Act" to insert "Marks".
This amendment is intended to correct a mistake which is in the Bill which refers to the Merchandise Marks Act, 1887 and in error "Marks" has been omitted.
It might be well to come in here and mention my disappointment at the fact that this matter has arisen. The principal Act is the Merchandise Marks Act, 1887. When I looked at the Bill, on its circulation, I tried to find a copy of the Merchandise Marks Act. Some very reputable solicitors failed to produce a copy and the only copy I could get was in the Library of this House. The title of the Bill is Consumer Information Bill, 1976, and if information means anything it means that something must be available to the consumer. The unavailability of a copy of this Act is a major stumbling block to the ordinary person who wants to discover his rights. There are references and cross references to the principal Act in this Bill. As far as I can see there are only three sections which are relevant, sections 2, 3 and 5 of the Act. Would it not be possible to have these sections in the principal Act repealed and brought in in a consolidated, amended form in the Bill? In the past fortnight or three weeks one of the Parliamentary Secretary's colleagues introduced a Bill which repealed major sections of other Acts and gave us in consolidated form a piece of legislation which was complete and an entity in itself with all relevant facts in the one document. In view of the references and cross references in this measure to three sections in the principal Act I see no reason why they could not have been repealed and brought into this Bill in amended form. On inquiring from the Parliamentary Secretary's predecessor about the same matter. I was told this would delay introduction of the Bill. I do not know what the Parliamentary Secretary was told but I appreciate that she was concerned with the speedy introduction of legislation for consumer protection and information. In five months I think she might have checked this at an early stage and if it were possible to have sections 2, 3 and 5 of the principal Act repealed, the drafting would not have delayed the Bill if they could have been brought in in amended form. I was disappointed when I received the amendments yesterday and did not see this type of approach applied to this Bill.
I regret very much that the Deputy had problems in getting a copy of the Merchandise Marks Act. The copyright had run out but we had the Act reprinted some months ago and it is now for sale in the Government Publications Sale Office in the GPO Arcade. I hasten to assure the Deputy that if at any time in future he has any similar difficulty, if he comes either to me or the Department we shall be glad to assist in any way we can. Repeal of the Merchandise Marks Act and its consolidation with the present Bill would, as he rightly gathers, have delayed the Bill to a certain extent. Both consumers and the Consumers' Association of Ireland are extremely concerned about the Bill and are anxious to have it put speedily through the House. It would be unfair to them to hold it up for a considerable period. It is important that the Bill be passed as soon as possible and I submit that this amendment is acceptable to the House.
The amendment is acceptable. On reading the Act, the sections in the Act which are relevant to this Bill have been amended right up to 1970. If this is to be for the information of the consumer I presume on the enactment of this Bill consumers should be in a position to get a copy of the Act so as to know their legal rights, but with the references, cross-references and the amendments of the 1887 Act up to 1970 that kind of information is denied them. I am grateful to the Parliamentary Secretary for offering to help me in resurrecting copies of Acts or amended Acts as I need them, but I am one consumer and, as the Parliamentary Secretary knows, most Deputies know where to go and can look after themselves in this matter. I am talking about the hundreds of thousands of people outside to which this Bill refers and the Parliamentary Secretary must admit that it would have been better if we had a consolidated Bill that could give all the information inside its covers without having references and cross-references to Acts and amended Acts.
I move amendment No. 5:
In page 2, line 35, to delete "if but" and to substitute "if, but".
The effect of this amendment is to make the sense clearer than it is at the moment.
With the assurance given by the Parliamentary Secretary that she will look into my amendment for Report Stage.
When Deputy Desmond spoke about it I said that I would look at it between now and Report Stage. Rather than repeating Committee Stage on Report Stage I think it would be better if I looked at it between now and the Committee Stage in the Seanad.
That is acceptable.
I move amendment No. 6:
In page 3, subsection (2) (b), line 48, to delete "section 2" and to substitute "the said section 3 (1)".
The purpose of this amendment is to correct a mistake. The definition of trade description is contained at section 3 (1) of the principle Act and not in section 2.
I move amendment No. 7:
In page 4, after line 3, to add a subsection as follows:
"(3) In this section the word `false' and `misleading to a material degree' shall be construed to mean `likely to mislead members of the public to whom it is directed'."
Having read the Bill, and the report of the debate, I note that Deputy O'Malley as he then was, now Minister for Industry, Commerce and Energy put down the same amendment and to my mind he made a very convincing argument as to why this amendment should be accepted. It might be misconstrued that in our efforts to get a fair deal for the consumer we are by implication condemning the manufacturer or the trader. This Bill is concerned primarily with the protection of the consumer, but it is also in the interests of manufacturers and traders, the vast majority of whom are honest, decent people going about their daily chores, earning their living in an honest way. What we are getting at is a very small minority who take advantage of the consumer who is unaware of his or her rights and who exploit many people. Most of them are fly-by-nights and there is no redress. We are not getting at the vast majority of traders and manufacturers who go into competition with their peers and try to earn an honest living. The reason for this amendment is to ensure that manufacturers, producers and traders are not put upon too heavily by the terms of this Bill. The definition of "false trade description" is very broad and it could lead to difficulties if it is left as it stands without this extra subsection which I regard as essential. A manufacturer or a producer could advertise goods in a very specialised range. We are living in an age of advanced technology, advancing more every day and many people read newspapers, look at television, read periodicals and trade magazines in which goods are advertised by manufacturers. In most cases people do not read the advertisements because the type of article advertised does not apply to their livelihood. There are people, however, who read these advertisements and who purchase goods in many cases out of curiosity or out of mistaken faith in what has been said in the advertisement. Deputy O'Malley as he then was, mentioned a specific ease of medicines being advertised, the advertisement probably being for the medical profession. As a result of some lay person's curiosity or out of mistaken faith the goods may be bought and may cause damage. The advertiser in this case, according to section 2, would come under severe pressure as a result of this Bill, even though he did not intend to aim his sales campaign at the person who purchased the article.
It would be very easy for a court to decide at whom a particular article was aimed. For that reason I have put down my amendment. There are people who buy specialist magazines and who may be enticed to buy something unsuitable. There is also the great danger that people may be enticed to buy medical preparations. Trade magazines carry advertisements for many articles which could be dangerous if they got into the wrong hands. It would be unfair to hold the advertiser responsible for damage caused by the misuse of his goods. To stay in business a manufacturer must advertise his goods. How do you tell him that he is running the risk of conviction if the goods which he advertises are bought by the wrong people?
While I sympathise with Deputy O'Toole, I believe that the original draft Bill is better than the proposed amendment. To take a classic example, a Cheann Comhairle, if there was a preparation to cure baldness, you and I could be affected by the amendment. While you and I might feel that it would be a false trade description to offer such hope, I believe that legislating against it would place an impossible burden on the courts. It is a matter for the courts to define false or misleading trade descriptions. I recall Deputy O'Malley's attempt to have the Bill amended on 29th March last. The response on that occasion by the Parliamentary Secretary was a stronger one. One would have to define the people who would be affected by a false trade description and this would pose insurmountable problems for the Parliamentary Draftsman.
If a doctor was misled by a false description of a medical preparation I have no doubt that the court would rule that it was a false description under the 1887 Act. A consumer information Bill of this nature cannot be expected to cater for all exigencies. The court must be allowed to define what is meant by a false or a misleading trade description. While I sympathise with Deputy O'Toole's views, I am not convinced of the need for his amendment at this stage. It is no harm for members of the Opposition to disagree from time to time.
Deputy O'Toole's amendments would, as Deputy Desmond said, place a great burden of proof on the State. The State would have to prove that a person had sufficient knowledge of, say, medicine, before the court could rule on the advertisement. A false or misleading advertisement should be an offence. Whether or not an advertisement is an offence should not depend on the knowledge of the consumer. The essence of this Bill is that we are trying to correct false advertising. As Deputy O'Toole said, the State would have to be discreet in judging specialist magazines such as those directed at the medical profession. As it stands, the amendment would place a great burden of proof on the State in that it would have to prove the extent of a person's knowledge of the advertised goods. As the amendment would not improve the Bill it would be better to leave the section as it stands.
I appreciate the difficulties mentioned by Deputy Desmond and the Parliamentary Secretary. The Parliamentary Secretary referred to the level of education of the consumer, but I am concerned with specific advertising which provides reasonable information for specific consumers. The information given in that consumer's case is not adequate. There is an omission in his case where as in his neighbour's case to whom the advertisement was beamed on the first day there is not an omission in the information. It could be unfair and it could work against the interests of the advertiser in some cases. I am pointing out that there is a danger, that we may have gone overboard in using this in a blanket form.
I appreciate the difficulties and at the end of the day all we can hope is that the courts will differentiate between what is right and wrong. However, the fact remains that the advertiser stands charged with an offence regardless of whether or not he can reasonably be expected to provide the information down to the lowest common denominator. We could have the position of the advertiser being hauled into court in the case of a person who is illiterate because he misused or abused a commodity which was beamed at some other category of person who would use this article. It is a heavy imposition to place on that advertiser. What is the lowest common denominator?
I should like to ask the Parliamentary Secretary to tell the House what defences have been terminated under this section. Section 2 (1) and (2) of the principal Act are referred to in section 3 (1) and I should like to know what material change is taking place.
It was a defence to prove that one had no intention to mislead or to defraud but that is now being removed by this section.
I move amendment No. 8:
8. In page 4, after line 52, to add a subsection as follows:
"(4) Notwithstanding any provisions of the Acts or of the foregoing subsections of this section, this Act shall apply to sales of vehicles otherwise than by way of trade."
We discussed housing at length this morning and I want now to bring in another aspect of trade prevalent here, the sale of vehicles other than by way of trade or business. The reason I want this new subsection added is that I am convinced that the volume of sales by private individuals which takes place in this line of business is very large. Legislation was introduced in England in 1968 to investigate abuses in this regard and it transpired in the first year of its operation that the vast majority of complaints referred to the unsatisfactory position with regard to the sale of cars. We are all aware that speedometers are interfered with and that the descriptions given in advertisements about cars in many cases are not what they might be. In fact, in many cases those descriptions are false. Many small advertisements in Dublin evening newspapers offer cars for sale. The year of manufacture of the car is given and the make and most of the advertisements finish with "PMO", perfect mechanical order. Some of those advertisements carry a box number. In fact, I have seen 1967 cars advertised as being in PMO. It is obvious that that is false information. Just as in the case of houses, cars are expensive commodities. We are not talking about tins of beans or firelighters; we are talking about a commodity which makes inroads into a person's finances. From the point of view of the consumer we are talking about value for money and to what degree protection can be given to the consumer so that he can get the maximum value for his investment.
While the sale of cars in the course of business or trade is covered in the Bill I should like to know if it would be possible to cover the sale of cars by private individuals. There are people who buy cars, carry out some work on them and sell them as a sideline. They do not advertise them openly and in many cases use a box number. The danger is that if this Bill is passed and the sale of a car by private individuals to their neighbours or other people is left outside its provisions, the small operator who sells cars in the course of his business—I am talking about the unscrupulous operator—and who will be caught will be given the incentive to go underground. He would no longer sell cars as a business but sell them as a private individual, and by so doing evade and avoid the provisions of this Bill. This is a distinct possibility and I am quite sure there are people who will avail of the opportunity to go underground and cease to trade officially. They will go back to using the box number and overcome the problems which might cause some difficulty under the provisions of the Bill.
For that reason I have put down this amendment and I should like to know if the Parliamentary Secretary has any basic objection. If so, is it because of the enforcement difficulty or is there some other reason? I presume it is difficult to legislate for isolated commodities because of the difficulty of definition, but a motor vehicle is definable and is defined in other Acts. Legal protection can be applied to that kind of commodity without any great trouble or difficulty.
I should like to support the amendment. If the proprietor of a garage inserts an advertisement in a newspaper or puts a notice in his window offering for sale a car which has done 20,000 miles and if it is subsequently discovered that the car has done 40,000 miles, he can be subject to criminal liability under this Bill. This is proper and fair, but if I sell my car to some gullible member of the public under the same kind of pretence, the only redress of the individual is to take a civil action against me. There is clearly an anomaly here and it is correct to suggest that it would be healthy and desirable that this situation should be circumscribed. A massive number of private motor vehicles and an increasing number of larger public service vehicles are sold by way of private treaty between individuals.
There is no reason why we should not consider an extension of criminal liability. I have always had the view that an extension could be useful in relation to certain products and commodities. There has been an enormous amount of litigation through the years in relation to sales of land. It has broken families and destroyed neighbourhoods and even destroyed local political parties. Criminal liability should extend to these transactions where there is obvious criminality proven. The same applies in relation to house sales and to the third biggest aspect of private property, the possession of a motor car. When we speak of a car, even one five or six years' old, we are talking in terms of a couple of thousand pounds. There should be basic protection given.
I hope I am not digressing too much, a Leas-Cheann Comhairle, when I say that there was a very interesting question yesterday when Deputy Horgan asked the Minister for Health how much smoking costs the country. The Minister gave a global figure and said that smoking costs the country £15 million a year in paying for people to go into hospital, preventive medicine and so on. I often wonder how much money it would save the country if we had an extension of criminal liability in relation to the sale of motor vehicles. We would not have fellows flogging radial tyres with repairs on the side walls. There would be an immediate blow-out if a car were driven at 60 miles per hour with such a tyre. There are so many opportunities for sharp practice in relation to the sale of motor vehicles that very often the only redress one has is to go through a protracted period of civil litigation. Cars are lethal to the public at large, quite apart from the large segment of the population driving around half drunk after 10 p.m. This is unique in Europe, and Ireland has a reputation in that regard. The extension to motor sales should be included. Deputy O'Toole has made a coherent case.
In fairness to Deputy Bruton and his reluctant non-acceptance of a similar amendment last March, he did indicate that he regarded motor vehicles and land as prime considerations for inclusion within criminal liability. Having read all the debates and listened at great length at various other symposia, I will never forget the sheer bitchiness of the former Opposition spokesman, Deputy O'Malley, during the course of the debate on this Bill. He was absolutely impossible and I do not know on what side of the bed he got out during last March and April. He really was incredibly critical of that Bill and there were sections of it which were wide open to amendment. He has initiated this Bill again without many changes. We now have a unique opportunity of going through a double Committee Stage. We ask the Minister to be open in the matter and to be as broadminded as he always wanted us to be when we were in Government.
The motor trade would welcome this amendment. It must be galling for a reputable motor trader trying to sell cars on the basis of giving a fair deal when there is a cute hawk down the road who buys and sells the odd car. One can make a lot of money if one is cute enough and has some training as a motor mechanic. In the old days they used to stuff and axle with a few stockings to deaden the sound but nowadays quite sophisticated repairs can be carried out which will carry a car for 5,000 miles or so. Such repairs are almost impossible to detect. From my own trade union experience I know a large number of qualified motor mechanics and they would frighten one about the capacity of people to doctor cars and sell them for several hundred pounds and do this every few weeks. There should be an opportunity for the consumer to take civil proceedings against individuals. A defective car can kill a child or the driver himself or his family or another motorist, just because some fellow was so avaricious and greedy. The sale of such a car should be the subject of civil proceedings not just civil litigation between the parties concerned. For these reasons I support the amendment of Deputy O'Toole.
It is a matter of regret that on the previous occasion Deputy Bruton was not in a position to accept the amendment. With the abolition of car tax the volume of sales has increased, especially in the case of young people in rural Ireland. The abolition of car tax was one of the main factors in the general election campaign, particularly in rural Ireland where the only tax a young person had to pay was in respect of cars. He did not have to pay income tax and paid little by way of social insurance. However, such a person could find himself caught badly in a private sale, and on that basis the amendment could be considered perhaps on Report Stage. It would be widely welcomed.
I am not unduly fussy about this matter. I have a healthy jaundiced approach to those in jurisprudence who are always trying to ensure the division between civil liability and criminal liability and between the areas of rigid jurisdiction. They maintain that we cannot possibly extend the net of criminal liability in this or that direction, that every judge in the country will have a heart attack. Nowadays the vast majority of families own a car. Very often they buy only four or five cars during a lifetime and they want to buy a decent vehicle. Cars are outrageously expensive here in comparison with Northern Ireland or Great Britain. In these circumstances the law should be updated. There is no reason why criminal liability should not extend to such transactions.
There is an anomaly in the Bill and I am sure Deputy Connolly, as an auctioneer, is aware of it. If he describes a car as a 1977 Fiat with a mileage of 5,000 miles and if it is taken out and driven down the road and somebody is killed, as an auctioneer he has criminal liability attached to him under the provisions of this Bill. However, if a man privately sells a car to his next-door neighbour by way of cash transaction and if an accident occurs, the only remedy is a civil action against him. It will be obvious to all that the situation is unfair. This matter should be rectified.
Because of the provisions in the Bill there is an incentive for people to disengage from the trade and to go underground, as Deputy O'Toole pointed out, and to operate through newspapers and box numbers. People who buy cars through advertisements could well find that they are not worth the money paid for them. The amendment is sensible and I would ask the Parliamentary Secretary to ensure that the parliamentary draftsman takes account of the view of the House in the matter.
Somewhat the same case has been made for the inclusion of private sales of cars as was made earlier by both Deputies for the inclusion of houses. The principle of the Bill is to catch those people who mislead in the course of business or trade. The inclusion of private sales of cars would not be capable of enforcement. It would be virtually impossible to do so.
With regard to the description of cars referred to by Deputy Desmond, this would amount to misrepresentation and would be a matter for a civil action by the purchaser. The market for cars is essentially a buyer's market whereas in the case of houses it is a seller's market. In the second Bill, the Consumer Protection Bill, there are serious provisions with regard to the sales of cars which would include business sales and private sales. The provisions include certificates of road-worthiness and guarantees covering all sales, whether private or business. Descriptions by private sellers are not included in this Bill and, therefore, I would be slow to accept that private sales should be included in this measure. A person is not obliged to buy a car privately. He can go to a garage or a reputable dealer. While the argument is somewhat on the same lines as that made in the case of houses, I would not be as sympathetic as I was in the case of houses.
Deputy O'Toole spoke of the many advertisements in the evening newspapers under box numbers. As the Deputy is aware, another section in the Bill covers box numbers, and trade sales through box numbers will be included in the Bill. Because of that I would be slow to include private sales of cars.
The Parliamentary Secretary rightly saw the similarity between the case made in this instance and that made with regard to houses. If I interpret her correctly, she relented to some degree in the case of housing in that somewhere between the absolutely private sale of one individual selling his house to another and the big developer selling hundreds of houses there is a person who sells a few houses each year and who will come under the provisions of the Bill. Just as the person selling one, two or three houses a year is deemed to be in the trade, there are people who sell five or six cars a year from door to door. Let us consider the position. As Deputy Desmond rightly pointed out, if an auctioneer sells a car on behalf of a client and the car is not as it was described, he is held responsible. If a private individual sells the same car and it kills somebody, perhaps due to a mechanical fault, the seller is free. There is no redress for the purchaser. There may be redress under another heading, but this Bill is for the information of the consumer.
As the Parliamentary Secretary will agree, it is logical to have as much information in this Bill as possible and to cover as many activities as possible. This is the first Bill of its type and we are now having the second bite of the cherry. When enacted this Bill should be better for having a second run through on Committee Stage.
In refusing to adopt this amendment the Parliamentary Secretary is differentiating between consumers. This is 1977 and the concept ofcaveat empter should be left behind, as has happened in other countries. It is illogical to say that this Bill should not apply to a commodity being disposed of by one type of person while the same commodity will come under this Bill if disposed of by another type of person.
Subsection (1) says that where a trade description is used in an advertisement in relation to any class of goods, the trade description shall be taken as referring to all goods of that class whether or not in existence at the time the advertisement was published. How can law enforcement be applied if a company undertake an advertising campaign for a commodity which is not yet on the market? A commodity could be advertised six months before it comes on sale to the general public. When it comes on the market it may not be exactly as it was described in the advertising campaign. It could happen that it was improved because of technical or similar advice. Would that type of information be regarded as misleading if a charge was brought by a consumer against the company?
If an advertiser places an advertisement for a commodity which is not yet on the market and when coming on the market it is improved, obviously the courts would have to decide whether it was a legitimate case or if the advertisement has been misleading. I imagine the courts would be as sympathetic as possible to the advertiser in the event of an improved product coming on the market.
Does that apply to matters of trade and business only?
Amendment No. 9 in the names of the Minister and Deputy O'Toole.
I move amendment No. 9:
In page 5, subsection (1) (b) (ii), line 21, after "nature" to insert ", effect or fitness for purpose."
I do not see any problem here because the amendment in the Minister's name is the same as that put down by Deputy O'Toole.
I move amendment No. 10:
In page 5, subsection (1) (b) (ii), line 21, to delete "service" and to substitute "services".
The effect of this amendment is similar to another. It is merely to make the sense clearer.
This matter was discussed previously. The definition of "service" and the question of whether or not the singular or plural form might be used were discussed before. I do not see what the improvement in substituting the word "services" is about because there is a case to be made for allowing the section to stand, as drafted. I do not want to hold up the proceedings but there was a long discussion on the definition of the words "service" and "services" as to whether both or one of them should be applied. I feel it would be safer if the word "service" was left because there are cases where the word has a specific meaning—for example, in the case of CIE giving a "service" in the form of a rail or bus service, in the singular. For that reason I would ask the Parliamentary Secretary how she will get round the definition of singular "service" if she substitutes it with the word "services" there.
If you like, it would change the uniformity in that section 6 (b) (i) has the word "services", as indeed have sections 6 (b) (iii) and 6 (b) (iv). It would make the sense clearer—that we would have the nature of any services, accommodation or facilities.
Is amendment No. 10 agreed?
I understand that banking is not included, or is specifically excluded later in section 23. All other services not specifically excluded would be included here?
I move amendment No. 11:
In page 5, subsection (2) (b), lines 41 to 43, to delete "whether or not the person making it had reasons for believing that it might be false" and to substitute "unless the person making it had adequate reasons for believing that it was true".
Section 6 (2) (b) sets out to define the word "recklessly" which is used in section 6 (1) (b). The effect of the amendment is to ensure that any statement made without positive reasons for believing that it is true will be a reckless statement. In addition, the point has been made to me that proving knowledge by a person in section 6 (1) (a) could be too onerous a burden on the prosecution, in which case the prosecution can fall back on the offence of 6 (1) (b) in respect of which the definition now proposed in this amendment is clearer.
Section 6 (2) (b) concerns the onus of proof. In discussing this with many people it would seem to be their opinion that the onus of proof should be reversed in this case. The Bill as drafted at present means the prosecutor has to prove that the statement was false, either the defendant knew it was false or made it recklessly within the meaning of (2) (b). The proof of either of those will depend on facts which are within the knowledge of the defendant and consequently would be difficult to prove. I should like to know the Parliamentary Secretary's reaction to the suggestion that the onus of proof might be changed.
This amendment would make it clearer that the onus of proof is on the defendant, that in fact a statement which was made was untrue or reckless.
Is amendment No. 11 agreed?
Section 6 (2) (b) reads:
a statement made regardless of whether it is true or false shall be deemed to be made recklessly, whether or not the person making it had reasons for believing that it might be false.
The amendment contains the phrase "unless the person making it had adequate reasons for believing that it was true". In other words, there is a very basic change here in that, from the original draft of (2) (b), we have the word "adequate" now included. The word "adequate" is not in the definition section for the very good reason that, as we are all aware, it is not definable. It is a discretionary kind of definition which would apply in the case of the word "adequate"; in other words, what is "adequate"? Obviously the courts will have to decide on the adequacy or lack of adequacy on the part of the person for believing that it was true. While I have all the respect in the world for our courts and their procedures, this could cause a problem in that there need not be a uniform application in court, or in different courts, because what one person might regard as adequate somebody else might not. Consequently, the word "adequate" included there could leave the application of the section open at least to some problems in that it could be at the discretion of a particular person to define what "adequate" means. Again, the definition of "adequate" could be coloured by other circumstances relating to the person himself. I should like to know how the definition of the word "adequate" will be approached in practice in the courts. As the Parliamentary Secretary will appreciate, it is a new concept; we are dealing in something new, which did not arise in the Bill as published and which could cause problems.
It might be no harm to refer to the fact that the amendment was introduced originally by my predecessor, Deputy O'Toole's colleague. During a very long debate the whole question of adequacy was dealt with". Indeed, the question of how adequate is adequate will be a matter that will be up to the courts to decide. It is not for the Deputy or I to say, to instruct the courts to say or to impose on them our interpretation of the word "adequate". Our courts will use discretion in deciding its meaning. The shifting of the onus of proof in this case to the defendant will mean that the defendant will have to produce his reasons for basing his judgment, and that it will be for the courts then to decide on whether they were adequate.
As amendments Nos. 12, 13 and 15 are related, they may be discussed together.
I move amendment No. 12:
In page 6, subsection (2) (a), line 14, before "within" to insert "at the same place".
Here again I do not think there is any problem since Deputy O'Toole has tabled a similar amendment.
I move amendment No. 14:
In page 6, subsection (2) (e), line 36, to delete "these" and to substitute "those".
This amendment is merely designed to improve the sense of the section.
I move amendment No. 15:
In page 6, subsection (2) (e), line 37, to delete "person; and" and to substitute "person:
Provided that, where such an indication is given at the place where the goods, services or accommodation are offered, the indication shall be treated, unless the contrary is expressed, as relating only to the goods, services or accommodation offered at that place; and".
I move amendment No. 16:
In page 6, subsection (2), lines 38 to 45, to delete paragraph (f).
As drafted the provision in subsection (2) could cause difficulties. In the case of a person buying a commodity which would normally carry an installation charge, the position is clear. One cannot think of very many commodities in respect of which the installation charge would be included in the cost as indicated by the vendor. Let us take the case of carpets, for example, for which there is usually a specific charge per yard. If the cost of laying the carpet is included in the price quoted the position is fine, but under this section if that cost is not included in the price quoted the question arises as to whether the vendor would be obliged to lay the carpet without charging anything extra.
Paragraph (f) of subsection (2) can be applied in the case of carpets without much difficulty, but one can think of many other commodities in respect of which ancillary equipment is required and in which very often specialist knowledge is required for installation purposes. It is in such cases that problems could arise as a result of this paragraph. For example, a person buying a kitchen sink or a vanity unit for a bedroom would be likely to require the services of a plumber. In most cases a person selling such commodities will not be the one to install them. Consequently, the cost of installation cannot be shown at the time of purchase. In the case of a major electrical appliance, too, there would probably be an installation cost involved and, as in the case of the other items I have mentioned, the vendor in this instance will not be likely to be the one installing the appliance. If a price in respect of installation is not mentioned in the price quoted for the appliance, does that mean that the purchaser can require the vendor to carry out the installation at his expense?
There is an area here that is not defined. In practice dealers selling items in respect of which installation is necessary and which consequently involves extra cost either in respect of ancillary equipment or at installation stage are aware of this extra cost as are the purchasers of such items. If we buy a kitchen sink or a washing machine that must be plumbed into the water mains direct supply, after making some inquiries and having shopped around we become aware of the problems that might arise about water and so on and that we would be faced with installation costs. If this paragraph were deleted it would ensure that no difficulties would arise. If the section is allowed to stand this could be interpreted as providing that if the price does not include installation costs and there are installation costs the vendor would be responsible for these costs.
The reason for including the paragraph in the first instance was to get at shopkeepers who quote one price and omit reference to installation. Deputy O'Toole mentioned carpets and I agree that there is an easy way of overcoming that, but he has made a very reasonable case of where, for instance, a person wishing to buy a bath goes to an ironmonger's sees one price in the window there, and realises that that does not include the installation costs. If he goes to an ordinary hardware shop in any part of the country he may assume, rightly or wrongly, that the price quoted for the bath there includes installation. This matter was discussed before on Committee Stage and it is a matter about which I am not happy because, as the Deputy has rightly pointed out, many ancillary things are needed for various items purchased and there may be installation costs involved which we may not be fully aware of. If the Deputy wishes to withdraw the amendment I might consider it with the one regarding houses on Committee Stage in the Seanad.
The acceptance of amendment No. 17 would involve the deletion of section 8 of the present Bill. Amendment No. 18 is related, so amendments Nos. 17 and 18 may be discussed together. Deputy O'Toole will understand that if amendment No. 17 is accepted, amendment No. 18 cannot be moved.
I move amendment No. 17:
In page 6, before section 8, to insert the following section:
8.—(1) A person shall not publish, or cause to be published, an advertisement in relation to the supply or provision in the course or for the purpose of a trade, business or profession, of goods, services or facilities if it is likely to mislead, and thereby cause loss, damage or injury to members of the public to a material degree.
(2) Any person who contravenes subsection (1) of this section shall, subject to the provisions of this Act, be guilty of an offence.
(3) The Director may, upon giving notice of the application to any person against whom the order the subject of the application is sought, apply to the High Court for, and may, at the discretion of that Court, be granted, an order prohibiting the publication, or the further publication, of an advertisement the publication of which is or would be a contravention of subsection (1) of this section.".
This amendment makes two changes in section 8; (a) it excludes private or non-business advertisements from the scope of the provision, following the same principle as in the case of the trade descriptions and the sale of goods to which they are applied; (b) it limits the power to seek injunctions restraining advertisements to the Director of Consumer Affairs. It was formerly proposed in the old section to be available to "any person". If such a right were to be available to any person there is a danger that traders could avail of it to stop their competitors' advertisements or to delay them in such a way as to render them useless. To prevent this happening it is proposed that any such applications to the High Court should be possible only with the approval of the Director of Consumer Affairs in writing. The Attorney General has advised, however, that that would be undesirable because such a provision in creating a new right would limit this new right —which would be of a public rather than a private nature—to cases where the Director of Consumer Affairs gave consent, and thus perhaps involve judicial functions by the director who would have power to prevent a citizen from having access to the courts. This new right, though undesirable would not be unconstitutional because it would not affect existing rights.
There would also be an administrative burden on the director and problems of a legal nature would place him in an invidious position. For instance, he might be obliged to give reasons to the courts for the refusal of his client's consent and these reasons could be the subject of challenge in the courts and there could be criticism in the courts also in cases where he had given consent. Therefore, as it is not possible to ensure that this power would be confined tobona fide cases if available to any person and as it is considered adequate for the preventive measure in mind, it is necessary to confine its use to the Director of Consumer Affairs himself.
I take it that this results in the deletion of section 8 as it stands?
The purpose of this amendment is to insert a complete new section, and the existing section 8 will be removed if this amendment is made.
The proposed substitution will narrow the field of access to the courts. Section 8 (3) (a) says:
Any person may, upon giving notice of the application to any person against whom the order the subject of the application is sought, apply to the High Court for, and may, at the discretion of that Court, be granted, an order prohibiting the publication.....
The amendment says:
(3) The Director may, upon giving notice of the application to any person against whom the order the subject of the application is sought, apply to the High Court for, and may, at the discretion of that Court, be granted, an order prohibiting the publication....
This narrows the field very much. I presume that, in any case, regardless of what is said here, any person would still have access to the courts in the normal way whether or not that access is now open to him as a result of section 8 (3). I would like the Parliamentary Secretary to comment on this.
With regard to the ordinary individual having access to the courts, if he or she thought that an advertisement was misleading or could cause damage either to himself or to somebody else, what is the position? Does it have to be the director who will bring the prosecution? We will be discussing the creation of the director in section 9, but at the moment if a person turns out to be an aggrieved party as a result of misleading information can that person go into court or is it confined to the director to go in on behalf of that person and have charges brought against the misleading advertiser? If that is so it is a major departure from section 8 as it was meant to operate and it would be a step detrimental to the interests of the ordinary consumer. I would like a further explanation from the Parliamentary Secretary on it.
Under the old section 8 the definition of any person going to court meant that in fact only a person who was aggrieved or who had been affected personally by a misleading advertisement or trade description could go into the court. Under the new section any person who feels that an advertisement is misleading or to whose attention it is brought that a trade description has been misleading, whether in fact it affects himself or herself personally, has the right to go to the Director of Consumer Affairs. The director can take the case to court on that person's behalf.
Does subsection (3) exclude the access of the ordinary person to court?
Under the new section, as it now stands, the person has to go to the Director of Consumer Affairs who will bring the matter before the court.
All this depends on the director. So far we have only had the definition of the word "director". Section 9 will determine whether or not this is acceptable. I am not suggesting that it is unworkable or might not work well but I strongly object to the consumers at large being denied the right, if they feel they have a case, to go into court without having to be routed through the director's office. If subsection (3) of this section is allowed stand as it is consumers' grievances and action taken as a result of their grievances will be a discretionary power on the part of the director. I can see all types of difficulties arising here.
For example, if the director feels that a particular consumer or a particular category or group are cranks or may be annoying him for other reasons he may very well not accept their grievance as being a genuine one and he may not process it through the judicial channels, even though that grievance may be entitled to that treatment. The director has a biased view of what that consumer is, or that group of consumers are complaining about. The power is being centralised in the hands of this new officer. It is taking the teeth out of section 8 as it originally stood. While the original section 8 was not quite satisfactory it at least gave broad access to the ordinary man in the street to bring his grievance to court and it was up to the court to decide whether or not he had a grievance. They acted accordingly in the case of advertising.
That basic right has been taken from the consumer who may be genuinely aggrieved or damaged by somebody. Under this Bill he will not be able to bring his grievance to the appropriate authority. He must channel it through somebody on whose discretion he will depend. I am not saying that this director will say to everybody coming before him: "Do not bother me" but there is danger in giving him that kind of power that this will arise. I agree that the director must have powers and he must have the means of applying them but if this is to be at the expense of the individual aggrieved consumer I am against that kind of approach.
Is the Parliamentary Secretary saying that there is no way in which I, if I am an aggrieved or damaged individual, can go to the court and sidestep the Office of Consumer Affairs? Am I at the mercy of the Director of Consumer Affairs? Am I in the position that he may say to me: "I do not like the colour of your eyes so I will not process your claim?"
I do not think, basically, that there is any great difference between my amendment and Deputy O'Toole's because both amendments are in connection with any member of the public applying to the courts. The amendment proposed by Deputy O'Toole states that the public can apply but only with the director's consent. My amendment states that a member of the public can apply to the director and then only the director can apply to the court. The old section 8 was fine and we could have left it in the Bill if we were sure that the power which the section gave would be confined tobona fide cases. The point can rightly be made that if such a right was available to any person there was a danger that traders might avail of it in order to curb advertisement by an opposite trader or to delay competitors so much as to make their advertisements useless.
The view has been held that it should be open to any person to apply to the High Court for an injunction to prevent the publication of an advertisement which was misleading and by virtue of the fact that it was misleading that it would injure the interests of the public. This proposition obviously departs from the general principle which normally operates that only a person who is affected by an issue may bring that issue to the courts. I cannot see adequate justification at present for changing that situation. There could well be a concealed personal interest as regards one trader in competition with another one where this could be abused.
Deputy O'Toole also made the point about leaving a consumer at the mercy of the director, that if he were biased against a certain person or felt the person was a trouble maker and was not interested in the public interests or in correcting a misleading advertisement, that person was at the mercy of a man or woman, whoever the director may be.
Under section 9 the Minister has considerable powers where the director is concerned. We will discuss this when we come to the section. One of them is that if he has adequate reason to feel that the director is not carrying out his functions properly—obviously the instance Deputy O'Toole has given would be one of them—that he is performing his duties in a biased way then the Minister would have power to remove the director if he felt these reasons were sufficient for his removal.
The amendment I proposed and the amendment Deputy O'Toole proposed are not all that different. Under the ministerial amendment any member of the public can bring a misleading advertisement or a complaint to the attention of the director and it is up to the director to proceed or not to proceed. Under Deputy O'Toole's amendment any member of the public could bring the case before the courts himself but would have to have the director's consent in writing. Basically there is very little difference between them.
On the surface I agree it would seem the difference is slight between the ministerial amendment and my amendment. The major difference lies in who and what the director will be. I have not legal training, but I would strongly question the denial of the right of the individual to go to court under this Bill if he felt sufficiently aggrieved or damaged. I understand that under the Constitution people have the right to do that if they feel so aggrieved.
The difference between my amendment and the ministerial amendment basically is "with the consent in writing of the Director of Consumer Affairs". I sought to allow the individual to go to court, but to keep out the vexatious type of complainer who by nature would enjoy himself doing that kind of thing. The director would have to give possibly a very superficial look at the matter to see what chance it had of succeeding and his consent in writing would be necessary. The director would not be processing the claim through the court. Having given his consent, that would be a matter for the individual. That is the basic difference.
According to my amendment the consumer would not be left at the mercy of the director, or the claim would not depend on the director's discretion. Under my amendment the director could ensure that a business competitor would not be allowed to go into court and promulgate something false or wrong about his opposite number. It would safeguard that kind of complaint. It would safeguard the courts from having to deal with cranks, professional complainers, if you like.
The Minister's amendment denies the right of the individual to have direct access to the court if he thinks his grievance warrants that action. That is wrong. It denies him a basic right. The Parliamentary Secretary may say that person will have access to the court. He may, but not under this Bill. I am all for this new Director of Consumer Affairs being all things to all men but, if that is to result in the denial of the rights of the individual consumer, I would not be at all happy.
It may well be that after section 9 has been discussed we will discover exactly what this new creation will be and that I will be happy with section 8 (3) as proposed by the Minister but, as of now, I have very great doubts about the effectiveness of subsection (3). My amendment will obviate the necessity for the courts having to deal with vexatious complaints not motivated by the highest ideals. The director's consent in writing would obviate the necessity for having to deal with that type of thing. I wanted to cut that type of time-wasting effort and professional cribbers bringing actions for reasons best known to themselves. The director would very quickly decide on thebona fides of such a person.
At the moment everybody must go to the director that in hand and we will come to the stage of: "An bhfuil cead agam dul amach, a mháistir no a mháistreás?" The Consumer Association of Ireland, the Irish housewives, the ICA, and many other groups, as consumers are concerned in an organised way about different things. What happens if they feel they have a case to make and the director turns them down? The Parliamentary Secretary may say that if a genuine complaint came from that type of responsible group he would not turn it down, but there is always that possibility. It depends on the kind of person he will be.
Not having discussed section 9 we are in the dark. If we accept this without complaint or without knowing what is in store for us in section 9, it will be like buying a pig in a poke. I hope the Leas-Cheann Comhairle will excuse my ignorance of procedure, but I wonder would it be possible to defer discussion on section 8 (3) until we know what is in store for us in section 9, because the implementation or application of section 8 will depend to a large degree on section 9?
We cannot go back but, if the Deputy wishes to raise the matter again or put down an amendment, he can do so on Report Stage. It would be wrong procedure to go back on sections. Is it agreed that the new section be there inserted?
Do I take it the Parliamentary Secretary has given——
Of course the Deputy has the right to raise this on Report Stage.
Would the Parliamentary Secretary not agree that there is an area of doubt here which may or may not be cleared up as a result of the discussion on section 9? I would suggest that, despite what may come after section 9, there is a major shift in section 8 (3) and something should be done to ensure that the individual has a right to take action in court if he feels so aggrieved without having to go through this nebulous person, at the moment, the director, which may nor may not be the best way to approach it. Could we get any indication that, as a result of the Parliamentary Secretary having a look at this again, hopefully the individual might be given the right—in other words, having a look at section 8 (3) (a) as it stands and the proposed subsection (3)?
The Deputy is worrying unnecessarily about who the director may be.
The Parliamentary Secretary knows but I do not.
I do not know who the director will be.
The Parliamentary Secretary has some idea of the type of office.
Anybody reading amendment No. 20 to section 9 should have a good idea of what the requirements would be of the individual appointed as director. I can assure the Deputy it will not be a political appointment.
I am not talking about the person involved. I am talking about the office of director.
Deputy O'Toole says that the director's consent in writing to be given before an application to the High Court is made would only necessitate a superficial look by the director but I do not think that would be the case because constitutionally the director would, in fact, have to give good reasons for his refusal to consent, if he refused, and good reasons for his consent, if he consented, because either might be questioned in subsequent court proceedings. This whole section 8 has been the subject of grave deliberation by me, as it was by my predecessor, and there have been several discussions with the Attorney General about the section since we were worried about the implications in the old section 8 and how best the new section might be fitted in. If the director were to allow an individual to approach the court the court might well criticise the director for not appreciating that the matter was sufficiently serious to justify the director himself going to court. On the other hand, if the director refused his consent it might be held he was preventing a citizen's right of access to the court. The director will be a specialist in this whole area and he will, therefore, obviously be the most effective person to bring a case before the court and, no matter which amendment is accepted, cases which the director thinks should go to court will go and those which he thinks should not go to court will not go.
Before proceeding to the amendment there is a minor matter which might create quite a number of problems later. Members will note that in line 7, the first line of section 9, the word "office" appears. The initial letter of the word "office" in this line was a capital "O" in the first print of the Bill. On Committee Stage in the last Dáil it was changed to a small "o" and, as the practice is to revive a Bill as it stood at the start of the Committee proceedings in the last Dáil, "office" in this print should have a capital "O". However, if the House agrees, I think the best course is to regard it as a small "o" requiring no amendment. Is that agreed?
Amendment No. 19 has already been discussed with amendment No. 1.
I move amendment No. 19:
In page 7, subsection (1), lines 9 and 10, to delete "and is referred to subsequently in this Act as the Director".
Amendment No. 20 is in the name of the Minister and amendments Nos. 21 and 22 are alternatives so the House may discuss amendments Nos. 20, 21 and 22 together. Deputy O'Toole will understand that, if amendment No. 20 is accepted, amendments Nos. 21 and 22 cannot be moved.
I move amendment No. 20:
In page 7, lines 11 to 15, to delete subsections (2) and (3) and to substitute the following subsections:
(2) The office of Director shall be a position in the Civil Service and no person shall be appointed to the office unless the Civil Service Commissioners, within the meaning of the Civil Service Commissioners Act, 1956, after holding a competition under section 15 of that Act, have, under section 17 of that Act, selected him for appointment to the office.
(3) A person appointed to be the Director shall hold office for a period of five years but the Minister may, if he thinks fit, continue the appointment (including the appointment previously continued under this subsection) for such further period not exceeding five years as he considers appropriate.
(4) (a) The Director may be removed from office at any time by the Minister.
(b) If the Director is removed from office under this subsection, the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for the removal.
This is the section on which Deputy O'Toole had all the points to make on the previous section. The provisions of subsections (2) and (3) that the director should be an officer of the Minister, a serving civil servant who could be removed at any time, were felt to be too restrictive and allow of too little status or effectiveness to the director. This amendment will ensure that (a) he will be selected from the widest possible range of candidates available; (b) that his appointment will be for a fixed term; (c) that the Minister cannot remove the director from office without reasons acceptable to the Oireachtas—such a removal would be from the office of director only and not necessarily from the civil service— and (d) if the Minister removes the director his successor must also be chosen by the Civil Service Commissioners in accordance with these provisions. The successor cannot be selected by the Minister.
The Parliamentary Secretary will recall that when this matter was being discussed in the last Dáil, Deputy O'Malley, Minister for Industry, Commerce and Energy now, made a very strong case—in fact he fought tooth and nail—about where the Director of Consumer Affairs ought to be, whether inside or outside the public service, and he gave umpteen reasons why he should be outside the public service. The shoe is now on the other foot and the shoe must obviously have squeezed because the Minister and his Parliamentary Secretary find it impossible to have the director outside the public service. Under subsection (2) "The office of Director shall be a position in the Civil Service". While I appreciate the appointment is in line with my amendment it will be as a result of a recommendation by the Civil Service Commissioners following on an open competition and the appointee, though he will come from the widest possible base, will end up in the civil service acting as a civil servant. I said earlier that I hoped at the end of the discussion on this section we would have some idea of the kind of office that would be set up.
To my mind the office is more important than the personage appointed to the office. While the person appointed is very important, naturally, the overall approach in this must be whether this person will have the wherewithal in terms of backup service and finance to give the service which the consumer expects and desires without constraint from other considerations. From the proposed amendment it would seem that this person will be a civil servant. Here we are entering an area of delicacy in one sense but I think it best to call a spade a spade. It is widely felt inside and outside the House that what is required in this office is a person who will crusade on behalf of the consumer and, I may add, also in the interests of the manufacturers and traders, the vast majority of those people in whose interest that person will also be acting. He will be acting against the small minority who cause all the trouble.
Apart from that small minority who cause damage through exploitation, misrepresentation or misdescription in the advertising of their commodities there is also the ugly spectacle of monopolies. We have those, and whether the word "monopoly" has dirty connotations in that it gives the impression of exploitation by that monopoly due to it being a monopoly is another matter. There are areas of life that are governed by monopolies and they do not seem to exploit us. We do not know because the problem with monopolies is that we have nothing to compare them with.
This director will be a civil servant, it seems, and in regard to monopolies the problem is that most, if not all, our monopolies are State monopolies. We have P & T, the transport system, the ESB, gas supplies, air lines—one can read holidays for air lines—the National Building Agency, sugar— provision thereof is a monopoly—Board na Móna, cement—there is supposed to be some competition there, I understand. There are many others but all these are State-owned companies engaged in the manufacture of commodities or in providing a service. Some of them act very ruthlessly and there is nothing we can do about it.
Let us consider the spectacle of a civil servant as director of consumer affairs. As a civil servant he is within the mechanism of the State; he is part of the infrastructure; he is within; he is a cog in the wheel and all the monopolies I have mentioned are cogs in the same wheel. The problem I can see for the director himself as a person, and for his office as an office, in bringing complaints to the stage where the aggrieved party can get redress, is one that will cause him great difficulty because, I think, of his being part of the State structure as a public servant within the civil service.
Recently, I saw a heading: "First Consumer Council Near Collapse" in theIrish Independent of 29th October, over an article by the consumer affairs editor, John Foley. It said that the first consumer council for a public utility, the Post Office Users Council was on the verge of collapse barely three years after it was set up.