Section 5 sets out the offences which will be punished by very substantial penalites indeed, as set out further in the Act but as proposed to be amended slightly by having some of the jail sentences removed and some of the fines reduced. It is interesting to see what is defined here as an offence because, for the first time, travel agents are included. If they sell a discounted ticket, no matter how slight, they commit an offence for which, on indictment, they can be sent to prison or fined. I think in the Bill it is £100,000 which is proposed by the Minister's amendment to be reduced to £50,000. In addition to that, there is a provision that, if an offence is created under this section, under section 10 of the Bill a travel agent can lose his licence. That is the case even though the whole purpose of licensing travel agents under the 1982 Act was to seek to protect the public against tour operators who went out of business. It was never envisaged in 1982 that that Act would be used to impose penalities on a travel agent for engaging in the normal commercial practice of giving a discount, a normal trade discount to anyone of his customers, no matter how good that customer might be.
We are in a very unusual situation here, in that we have under this Bill higher penalties, for example, then under the Mergers, Take-overs and Monopolies (Control) Act of 1978 or the Consumer Information Act of 1978. We have far higher penalties than under the Prices (Amendment) Act of 1972. It seems extraordinary that, while the maximum fine there is apparently £500 for charging too much for a product or service, the maximum fine here is £50,000 for charging too little, which seems to be a remarkable sense of priorities.
It seems equally remarkable to anyone who cares to look at it or think about it. Even for malpractices on the stock exchange under the European Stock Exchange Law the maximum fine for many serious malpractices is £1,000, even though the loss to the public or the consumer would be very substantial. Here where the consumer might gain from the offences of charging too little, the fine is no less than £50,000 plus a period in jail for some offences. This is from a Minister who has claimed on numerous occasions that he is pro-consumer and supportive of competion, for example, between airlines.
In connection with the offences created under this section, I would refer to a report in The Irish Times of 7 February 1985 which stated:
Significant amendments, to reduce legal penalties and free competition between travel agents and airlines, have been agreed by the Government in relation to the Air Transport Bill.
The Minister for Communications, Mr. Mitchell, advised the Fine Gael Parliamentary Party yesterday on the steps he intended to take to amend the Bill at present before the Dáil so as to provide for more open competition between travel agents and airlines.
The chairman of the parliamentary party, Mr. Kieran Crotty, told correspondents that the new proposals were "quite acceptable" to most people at the meeting. They had been given an assurance, he added, that the legislation was not anti-consumer and not "a benefit Bill for Aer Lingus."
If the Fine Gael Parlimentary Party were given those assurances and if they believed them, as apparently they did — nobody has come in speak on this Bill apart from the Minister, Deputy Wilson and I — they must have been misled because there is no evidence in this section or in the remainder of the Bill of any attempt to permit more open competition between travel agents and airlines. Anyone who does compete will commit a crime and will face very substantial penalties, including a jail sentence. I do not see how this Bill, even with the limited amendments proposed by the Minister, is compatible with the statements he is reported to have made on 6 February last. Certainly these statements were not denied.
On 14 November 1984 the Minister made the first of the various statements that he was in favour of free competition. He makes statements of that kind but what counts is what is to be enacted, not a general bland assurance from the Minister. The provisions of the Bill, particularly in this section setting out a whole series of rather artificial offences which hardly correspond to the provisions of the law in other countries, are at variance with the grand, general, bland assurances of the Minister that he is all for the consumer and for competition. They are quite incompatible.
The Minister says that there are other countries which prosecute for offences of this kind but the only one I can think of is France. We know what has happened to the French prosecution. The French court took the view that the provisions of the French law were not compatible with the Treaty of Rome and referred the matter to the European Court for judgment. The judgment is still awaited but the opinion of the advocate general advising the court is to the effect that the court should find the French law incompatible with the competition provision of the Treaty and that therefore it should be struck down. If the French law is struck down, this proposed law, which is far more stringent then anything there is in France, will be struck down too. Since the judgment is due to be given by the court next month and since it looks on the balance of probability that it will go in favour of striking down the French law, what is the point of trying to enact this law since it would be struck down too?
