I move amendment No. 1:
In page 2, line 16, to delete "Energy" and substitute "Tourism".
Trading Stamps Bill, 1979: Committee and Final Stages.
SECTION 1.
Amendment agreed to.
I move amendment No. 2:
In page 2, between lines 18 and 19, to insert the following definition:
" `redeem', in relation to trading stamps, means to exchange such stamps for money, goods or services;"
Does this amendment propose a change from the present position?
The meaning of the word "redeem" is quite clear in the context. Nevertheless we see no particular objection to such a definition being included. The major trading stamp company have moved away from a system of central redemption of stamps in their own offices to a situation where stamps can now be redeemed directly in the various retail outlets operating the franchise. Certain suppliers of services now participate in the scheme such as dry cleaners and hairdressers.
Amendment agreed to.
Question "That section 1, as amended, stand part of the Bill," put and agreed to.
Sections 2 to 4, inclusive, agreed to.
SECTION 5.
I move amendment No. 3:
In page 4, lines 10 to 12, to delete subsection (3).
This amendment relates to the deletion of subsection (3) which states:
The provisions of this section shall not apply in any case where the trading stamps concerned were issued before this Act came into force.
I understand this provision is quite normal in other Bills. What is the purpose of its deletion in this case?
This section requires trading stamp companies to make available facilities for redemption of trading stamps for cash. Subsection (3) was designed to enable companies to make any necessary administrative adjustments to cope with this new requirement. I understand, however, that the major stamp company in Ireland have for some time been offering the facility of redeeming stamps for cash so that the administrative problems to which I have referred are unlikely to arise to any significant extent. In any event the continued existence of subsection (3) would, in my view, create unnecessary confusion for both the customer and the company since it would be very difficult to establish when the stamps were issued. If the subsection is deleted the provision will be that a stamp holder will be able to exercise the cash option without question as to when the Act came into force.
Is the deletion of subsection (3) an inducement to trading stamp companies to undertake a major promotional operation for their stamps because the restrictions would not apply restrospectively after the introduction of the Act? Is it not an invitation to them to indulge in promotional efforts prior to the enactment of this Bill?
It would have the opposite effect because they are now required to redeem stamps for cash. It is very hard to define when stamps were issued. Section 3 is to make this more explicit as it was thought that the original Act was not explicit enough.
If they are obliged to provide cash now on the redemption of stamps I agree that subsection (3) does not need to have——
That is actually happening with the major stamp trading company at the moment.
Amendment agreed to.
Section, as amended, agreed to.
SECTION 6.
Amendments Nos. 4 to 8, inclusive, are cognate and may be discussed together.
I move amendment No. 4:
In page 4, line 19, after "goods" to insert "or services".
What kind of services would come under the terms of the provisions of this Bill? We are aware of the goods. Is this to ensure that if in future stamps were to be used for the provision of services, these services would be included in the Bill?
Yes.
Are any services being included now by the companies?
Services could include hairdressers, dry cleaners, garages and so on. This is to legalise that and to clarify it. This is really a drafting amendment to harmonise the phraseology used in the Bill to describe the places where stamps can be obtained.
Amendment agreed to.
I move amendment No. 5:
In page 4, line 21, after "goods" to insert "or services".
Amendment agreed to.
I move amendment No. 6:
In page 4, line 25, after "goods" to insert "or services".
Amendment agreed to.
I move amendment No. 7:
In page 4, line 45, to delete "each retail outlet" and to substitute "every shop or other premises".
Amendment agreed to.
Section, as amended, agreed to.
SECTION 7.
I move amendment No. 8:
In page 4, line 53, after "goods" to insert "or services".
Amendment agreed to.
I move amendment No. 9:
In page 4, line 55, after "goods" to insert "or services".
Amendment agreed to.
Section, as amended, agreed to.
SECTION 8.
Amendment No. 10 is a substitute amendment which would delete section 8 of the Bill.
I move amendment No. 10:
In page 5, before section 8 to insert the following section:
8.—(1) For the purposes of the Sale of Goods Act, 1893, and the Sale of Goods and Supply of Services Act, 1980, the publication by a company which is the promoter of a trading stamp scheme of a catalogue shall be regarded as an offer, and the tender within the prescribed period of validity of the appropriate number of stamps shall be regarded as an acceptance, in the same way as if the offer and the acceptance were for a monetary consideration.
(2) The provisions of the Sale of Goods Act, 1893, and of the Sale of Goods and Supply of Services Act, 1980, shall apply in every case where the promoter of a trading stamp scheme offers goods or services in exchange for trading stamps.
(3) Where a person other than a promoter of a trading stamp scheme offers goods or services in exchange for trading stamps, the provisions of the Sale of Goods Act, 1893, and of the Sale of Goods and Supply of Services Act, 1980, shall apply in the same way as if that exchange were for a monetary consideration.
This proposed amendment arises mainly for three reasons. I explained earlier that, in the case of one stamp company at least, trading stamps can now be exchanged for services, rather than goods, and that it was necessary to adjust the Bill in the area which might be affected. Section 8 contains another instance where this arises.
The section regards a trading stamp transaction as a sale of goods for the purpose of the Sale of Goods Act, 1893. Deputies will be aware, however, that the Sale of Goods and Supply of Services Bill, 1978, which I hope will be enacted shortly, implies certain terms into contracts for the supply of a service, as well as up-dating the law on the sale of goods. To cover the situation where trading stamps can be redeemed for services, it is desirable to apply the provisions of the 1978 Bill to such transactions, so that a customer who obtains services in return for stamps will have the same sort of protection as if he were redeeming the stamps for goods.
I also mentioned earlier that our major trading stamp company have now moved away from a system of central redemption of stamps for goods in their own offices, to a situation where stamps can now be redeemed directly in the various retail outlets operating the scheme. Deputies will note that the effect of section 8, as it stands, is to apply the provisions of the Sale of Goods Act, 1893, to a trading stamp transaction only where the promoter of the scheme publishes a catalogue of goods, and so on. However, since the customer can now redeem the stamps issued by this company at any retail outlet taking part in the scheme, it would be desirable to extend the protection of the Sale of Goods Acts to that situation as well. Subsection (3) of the proposed amendment achieves this objective.
Section 8, as drafted, only applied to trading stamp transactions the provisions of the Sale of Goods Act which provided for implied conditions and warranties. There are, however, many other aspects of the sale of goods legislation, which it would be appropriate to apply to trading stamps transactions in the same way as they apply to straight-forward sale situations. I am thinking in particular here of the range of provisions in the Sale of Goods and Supply of Services Bill dealing with guarantees. It is right, therefore, not to restrict the application of the Sale of Goods Act merely to provide for implied conditions and warranties as the section presently does, but to widen it so that the two pieces of legislation involved will apply to trading stamps transactions, where relevant.
The Minister refers to catalogues being published within the prescribed period of validity of the appropriate number of stamps. In a lot of instances specific dates are not set. Is it compulsory in the catalogue to ensure that a specific date is set out? These catalogues are frequently published with no specific dates. A person would be unaware of the position in that case. Will the Minister clarify whether it will be compulsory on a company to put a date in these catalogues?
In relation to the sale of goods the Minister referred to goods which are valued at over a certain amount of money. Is there a specific amount of money? If a very small item is purchased which is valued at about £1 would it make any difference? What is the position there?
That is covered in section 6 (2) (d) which states that every catalogue published by or on behalf of the promoter of a trading stamp scheme shall:
(d) state the date on which the catalogue shall cease to be valid, which date shall be not less than six months after the date specified in subsection (3) (b) of this section.
As the Deputy knows the catalogue would have to be issued in accordance with the Minister's instructions and it cannot be issued without the permission of the Minister.
Is there any specific point in regard to the value? I wonder is the Minister referring to the value of the goods in the catalogue or to the value of a number of items purchased.
It relates to the value of the stamp and stamps are now being offered for a cash transaction. That is the whole change—stamps are worth so much in a cash transaction when redeemed. That is the kernel of this Bill and this is where a customer gets value for stamps. X stamps are worth so much cash and you can relate that to other matters.
Amendment agreed to.
The net effect of acceptance of amendment 10 is the deletion of section 8 as it stood in the Bill and the substitution of the new section 8 in three subsections. The definition of a trading stamp has been given in section 1. Looking at subsection (3) of the new section 8, I wonder if bodies such as the ESB and semi-State bodies that provide stamps for an easy payment system for a service rendered will be included as a result of any possible legal confusion.
Easy payments are not covered by the Bill.
That may be the effect of the supply and purchase of stamps in the case of the ESB or some such body offering a service but, while the result may be easy payments, I do not know if the legal interpretation of that practice would be easy payments. It is the provision of a stamps system in lieu of a service rendered. Is the definition tight enough to exclude such a system as I have instanced?
It is not a trading stamps system as we have it defined in the Bill.
That is what I am trying to find out, if the definition of trading stamp is tight enough to exclude that kind of operation.
We are convinced that it is.
NEW SECTION.
I move amendment No. 11:
In page 5, before section 9 to insert the following section:
9—(1) Every person who is the owner or occupier of, or other person having control of, any shop or other premises in which a trading stamp scheme is operated shall—
(a) Where the promoter publishes a catalogue of goods or services offered in exchange for stamps, keep available for inspection on demand by customers a copy of the current catalogue relating to the scheme.
(b) display in a prominent position where it can be easily read by customers a notice stating in clear and legible characters—
(i) where the promoter publishes a catalogue of goods or services offered in exchange for stamps, that the catalogue is available for inspection by customers on demand,
(ii) the number of stamps offered for every £1 worth of purchases in the shop or other premises, as the case may be, and
(iii) the cash redemption value of the stamps.
(2) Any person being the owner or occupier of, or other person having the control of, a shop or other premises in which a trading stamp scheme is operated who fails, without reasonable cause, to comply with the provisions of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £50.".
As there were a number of amendments which I wished to make in this section I felt it would be best if the whole section were deleted and replaced by the version appearing in the amendment.
Briefly the changes I propose are, first, in subsection (1) it seems somewhat infelicitous to be requiring a "shop" to display information. Clearly, the onus should be on the owner or occupier of the shop and not on the shop itself, and this is the first change proposed. Secondly, the amended version extends the duties imposed by the section to the owner or occupier of any premises where a trading stamp scheme is operated and not just to a premises that could be classified as a "shop". Examples of such other premises would be motor garages, dry cleaning establishments and so on. Thirdly, the amendment also now provides for the situation in which stamps may be redeemed for services; and, finally, subsection (2) mitigates somewhat the offence being created for non-compliance with the section by providing that the owner or occupier will not be guilty of an offence if he can show "reasonable cause" for not displaying the information required.
I feel that it would be unfair to make a retailer liable for an offence in respect of something over which he might have no control. For example, I know that many retailers, and indeed their customers also, were unable to obtain catalogues during last year's postal strike. In a situation like that we would allow the retailer a reasonable defence.
I can understand that if a company were, say, trying to carry out a fraud, you would need to catch up with them and not allow them to take a sharp advantage. I can think of many people who are relatively badly off who might in a financially tight situation let a shop or premises to a group. I think it is somewhat unfair to sue the owner who might be a widow in such a case. It seems strange that the Minister should go after the owner. The Minister specifies here "every person who is the owner or occupier of, or other person having control of any shop or other premises in which a trading stamp scheme is operated." Further on, in subsection (2) it is stated: "Any person being the owner or occupier ... shall be liable on summary conviction to a fine not exceeding £50". Why is the Minister making the owner responsible? On one hand, you have perhaps a widow or other person letting a shop or premises, possibly living overhead and on the other a very big trading stamp firm. The obligation should be on the Minister's Department to ensure that the trading stamp company would be the person responsible and make it mandatory on the company to have sufficient funds lodged with the Department or have ability to produce sufficient funds to satisfy the Department. Those are the people the Minister should go after rather than the owner.
I appreciate that the wording is "owner or occupier" and the Minister may say that he will go after the occupier, the company. It would be unfair to make the owner responsible when he may not be a well-off person while the trading stamp company may make the owner the scapegoat.
I do not think that could happen. It says here: "owner or occupier of, or other person having control of". I believe that covers the situation pretty well. The occupier would be the person really responsible for the displaying of the notice. That is what we want to achieve. The notice has to be displayed and it is the occupier, the person carrying on the business, who must display the notice. One must look at the other side of the coin. We have many cases even in the Department of Industry, Commerce and Tourism and in consumer protection matters where when you try to look up people you find that they have fled.
It seems you are leaving the baby with the owner.
That was never the intention.
I appreciate it was not the intention.
Where the owner is not the occupier is where the problem arises. The word "or" can be very important in certain circumstances. For example, the occupier may have drawn up some tenancy agreement with the owner which places certain responsibility on the owner. There are cases where the owner may be responsible for the activities of the occupier through some agreement between themselves. From the point of view of this Bill there might be great difficulty in pinning responsibility on a specific person. I can foresee some difficulty in the interpretation of this.
I think this is a very reasonable provision. The person having control of the shop gets the benefit. The Deputy is anxious that those people be included, not the owners who have left the shop.
I can visualise a situation where the owner might be living in Timbucktoo and because of some letting arrangements with the occupier may be responsible.
It says "or other person having control of". It also says "in which a trading stamp scheme is operated who fails without reasonable cause". I believe that "other person having the control of" covers that very well.
I am glad the Minister mentioned "without reasonable cause" which is a new insertion in subsection (2) and which is not to be found in the old subsection of this section. I appreciate the reasons for including this in the amended version but in this section it says "in which a trading stamp scheme is operated who fails to comply with the provision". That was in the old subsection. In the new one we have "who fails, without reasonable cause, to comply". If the persons fails to comply, he or she is guilty of an offence. If the Minister includes "without reasonable cause" and there are extenuating circumstances, discretion can be exercised. That type of discretionary power is always there and is so interpreted by the courts.
There are certain cases where the courts have no option but to convict if certain facts are found. It is at the discretion of the court that this has to be settled. That is the reason why the clause "without reasonable cause" is there. That is really for the courts.
If that were never there the courts would apply this kind of discretionary judgment in reaching a decision.
No. If the facts were proved without "reasonable cause" being inserted, the person would be convicted.
Why did the Minister change from the original version to the new one? Was it as a result of approaches made?
As I said previously, I felt it would be unfair to a retailer to be liable for an offence in respect of something over which he or she had no control. That is the reason for the latter part of the change. The example I gave was if catalogues had not arrived during the postal strike. If there was a burglary overnight and the catalogues were stolen, that is another example. We have to be reasonable.
On the one hand we have a lot of very wealthy companies carrying on trading stamp schemes. They have all the cards in their hands.
We are dealing with retailers, not companies involved.
Yes, but there is the same situation even in that instance. There are very well off people who may obtain property on a weekly or monthly tenancy basis. They are in a much stronger position and are the people on whom the responsibility should rest for keeping the catalogue published up to date and keeping a copy available for inspection on demand by customers. They are the people who display the notices. I feel it is very unfair to make the owner of a shop liable. The owner of the shop will find himself in court in relation to this. He will have to defend himself and say that he knew nothing about this. The Minister should make it tighter on the retailers and the companies as against some poor innocent person.
The onus is on the retailer or the person who has control of the shop or premises to ensure that a catalogue is in the premises. Those people are involved in this scheme and they have an agreement with the company. They are running the premises. Surely the onus is on that retailer, shopkeeper or whoever it may be to see that the catalogues are available and that all the regulations are complied with in relation to the premises over which they have control. It is a deal between the retailer and the trading stamp people.
I want to ask the Minister a question in relation to this "without reasonable cause" which is of particular interest to me. If in 1979 this legislation were on the Statute Book and I were in the trading stamp business in a retail outlet situation and because of postal difficulties I could not display whatever was necessary under the regulations is the Minister saying that if I was brought to court a judge would convict me if this "without reasonable cause" was not inserted in section 9 (3)?
I can quote a case where a catalogue has been changed.
Surely my solicitor would go into court and say: "This man is here because he was not in a position to take delivery of this particular batch of cards because the postal service was not in operation". There is no judge in any civilised democracy who would convict me if I were to put up that kind of plea or if somebody did it on my behalf, even if this were not included in the subsection.
It would be the judges' business if he did it without that being in the Act. I want to make the position quite clear. That is the reason why "without reasonable cause" is included.
Amendment agreed to.
The old section 9 of the present Bill is deleted.
Sections 10 to 13, inclusive, agreed to.
NEW SECTION.
I move amendment No. 12:
In page 6, before section 14, to insert the following section:
14.—(1) Summary proceedings in relation to an offence under this Act may be prosecuted by the Minister.
(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within twelve months from the latest day on which the offence was committed.
Amendment agreed to.
The new section is inserted.
Section 14 agreed to.
Title agreed to.
Bill reported with amendments and passed.