This concerns the request that an amendment be made which will ensure that the report of the Restrictive Practices Commission will be laid before the House within 14 days of its receipt by the Minister. The Minister could do that even though he has not made up his mind about the recommendations in it. Laying it here would allow other viewpoints to be expressed if necessary before the Minister made his decision. If a period of 14 days is too short, is the Minister prepared to accept a longer period?
Restrictive Practices (Amendment) Bill, 1987 [Seanad]: Committee Stage (Resumed).
Debate resumed on amendment No. 5:
In page 10, before section 18, insert the following new section:
"18.—Section 18 of the Principal Act is hereby amended by the insertion in subsection (1) of the following after `section 10':
`within fourteen days of its receipt by him'.".
—(Deputy J. Bruton)
I accept the point made by the Deputy. In practice all these reports are dealt with within three months. While not being rigid about it I accept that a period of 14 days is unrealistic. We are putting in a statutory requirement. If I suggested six months would the Deputy agree to that?
I do not want to bargain with the Minister but six months sounds so long that it does not make a lot of sense. I would prefer if it were three.
We will settle for four. Will that do?
Yes, and will the Minister draft the amendment?
I will, for Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 10, before section 18, to insert the following new section:
"18.—Section 18 of the Principal Act is hereby amended by the insertion of the following subsection:
`(3) If, within a year of its having been laid before each House of the Oireachtas, a decision on any recommendation of a report made by the Commission has not yet been decided upon by the Government, the Minister shall lay before each House of the Oireachtas a report indicating why a decision has not been made.'.".
This amendment is to deal with reports where no decision has been taken in the hope that public interest in the matter will wane and everybody will forget about it. There have been some reports upon which no effective decision has been taken, for instance the 1982 report with regard to solicitors and conveyancing.
That is the bane of your life, Deputy.
It illustrates a large gap in the law in that the Minister responsible cannot act on the recommendations and the problem has to be passed to another Minister. No decision is taken apart from referring the matter to another Department, which is not a decision at all. This amendment requires that, if a decision has not been taken on a recommendation, the Minister will lay before each House of the Oireachtas within a year a report saying why a decision was not taken. Apart from the report already mentioned, there is a report on the travel trade on which no effective decision has been taken. A report of 20 April 1978 in regard to the supply and distribution of cinema films and making recommendations was not acted upon for the strange reason that there was no consensus in the trade on their operation. That is an odd reason why a statutory body could not make fair practice rules. That is not a satisfactory outcome. That case probably illustrates better than the solicitors' case the need for an amendment of this kind.
Abuses in the area of the distribution of films affect only a very small number of people so there is not likely to be as much public agitation about them as there is likely to be in relation to solicitors and conveyancing which affect many more people. It is a problem that can lie there without being dealt with, a recommendation having been made but no action having been taken. This amendment would require the Minister to give a report within a year if a decision has not been taken on a recommendation and it would act as a form of incentive to take a decision if a Minister does not want to lodge a report admitting that he has been unable to do anything about a recommendation. This would be a useful improvement in the law and I hope the Minister will accept this amendment.
I support this amendment. There is very little accountability to this House for the implementation of decisions taken by this House. This amendment seeks to introduce the very important principle of accountability. If decisions are not implemented by civil or public servants or by independent bodies, we should at least be given reasons as to why something has not been done. This amendment gives a deadline so that people would know that, after a while, questions would be asked in the Dáil and criticism would be made by Members of this House if action was not taken on directives for the common good of the people.
By accepting this amendment there would be a working period of one year to implement each recommendation which is certainly less than the average at present. There is a strong case for this not only in the area of RPC reports but in the area of EC consumer directives on door to door selling, on toy safety and so on on which we are lagging two, three and four years behind. On the grounds of accountability and of bringing a deadline into the system this amendment should be accepted.
I support the thrust of this amendment. We are talking about the same thing here as we did on amendment No. 4, which is what happens to reports of the commission and to the work the director does after it is completed. Has it any relevance to reality? This House bears a responsibility in relation to that. As Deputy Yates said, we must have accountability. If we take a decision we want to see that it is implemented. I am not altogether happy with the way this amendment is worded. It leaves things rather loose in that the Minister has to indicate why a decision has not been made. To indicate why something has not happened is more difficult than to indicate why something might have happened.
I can also see there would be difficulties arising, for instance, as we have discussed earlier on, where another Department, other than the Department of Industry and Commerce might be dragging their heels or at fault. The Minister for Industry and Commerce is required to come in to the House and blame another Minister. I think that is not really workable. On the other hand, the principle behind the amendment is absolutely right, that is, if a decision is taken, or if a report is issued by a properly designated body set up by the Government or by this House, it should not be ignored. There should be channels through which it will be implemented or at least given consideration by this House.
The intention of Deputy Bruton's amendment is to force the Minister, where a decision has not been made on any recommendation of the Restrictive Practices Commission, to lay a report before the Houses of the Oireachtas indicating why no decision was made.
In general terms, when the Minister has published a Restrictive Practices Commission report which made recommendations which the Minister was empowered to enforce, the Minister has pursued the recommendations without undue delay. There is no evidence to suggest that the absence of a provision such as this has led to delay in action being taken on the basis of any commission report.
There have been a number of cases where the enforcement of the commission's recommendations was outside the Minister's powers, as Deputy Colley has said, due to the exclusions contained in the 1972 Act in relation to banking, transport services and other areas. However, most of these exclusions are now being removed and such problems should not arise in the future.
There is no need to build into this legislation a requirement that such a report would be laid before the Oireachtas. It is not envisaged that there should be delays of this sort once this Bill has passed and, in any event, if any Deputy is concerned about the progress of action on any recommendation he can get that information by asking a question in Question Time. At any rate I refer the Deputies to the provision in the Restrictive Practices Act in section 8 (4) which requires the Minister to make a statement to each House when he decides not to make an order as recommended by the commission.
The existence of this provision helps to ensure prompt action by the Minister and also ensures that the Oireachtas will be informed if the Minister does not propose to proceed with any of the commission's recommendations. I recall the instance referred to by Deputy Bruton in relation to the cinema which was resolved by agreement within the trade subsequently. In relation to the Solicitors Act, a decision was taken by the Department of Industry and Commerce but, as we all recognise quite rightly, it is a matter for the Department of Justice to take it a stage further.
It is not enough.
I would like to do all the work if I was given it but the practicalities of doing it are one thing. If the Deputy wants to upturn the whole situation and hand me the power, we are heading towards dictatorship.
The Minister referred to the provisions in section 8 (4) of the Principal Act. I have no recollection of any such statement being made in regard to the failure to implement the provisions of the report on conveyancing, for example. I am referring to a reply the Minister gave me to a question on the travel trade. He said that an order was recommended in regard to the travel trade, the Attorney General decided that this was ultra vires, but no statement was made in accordance with section 8. The same applies in regard to the report on the inquiry in regard to building societies. An order was recommended by the commission and, while the Minister for the Environment acted subsequently in regard to most of the matter contained therein, within a literal interpretation of section 8 (4) the then Minister should have lodged a statement. That did not happen. I have to say I was Minister at the time, but it was never brought to my attention that there was such an obligation.
The Deputy should ask himself why this did not happen.
Because it was never drawn to my attention and that is a fact. If I was aware that there was a statutory obligation to do this I would have done it. It seems that the Minister's defence so to speak, that this provision already exists is there on paper but not in reality. The provision I am putting forward in this amendment is more explicit and relates particularly to making such a statement, either where a decision has been taken not to make an order, or where no decision has been taken, that in both such situations a statement should be laid. It may be that the technicality upon which officialdom did not recommend the laying of a statement under section 8 was that no decision had actually been taken not to make an order — it just had not been done — and therefore they did not feel there was an obligation on them to lay the statement.
It would appear if that is the case that a very cavalier attitude was being taken at the time in regard to the obligations under section 8. I feel that my proposed amendment would make it more explicit. I accept fully that in normal times, in 95 per cent of the cases, this provision is irrelevant because the Minister will act. It is simply there as a safeguard, as a long stop. Where there is a conspiracy of inaction of some kind or another in respect of a particular matter, there should be accountability. We are not asking for anything draconian or costly, simply the laying of a statement which would appear on the back of the Order Paper on a particular day, no greater fuss than that, saying that in accordance with the section an order has not been made within 12 months for the following reasons.
The Minister says rightly that this information could be obtained by means of a Parliamentary Question. That would not have the same disciplinary effect because, to be quite frank about it — and Deputy Yates referred to this — you never know when a Parliamentary Question is going to come in. They can come in any week and they do not have the same deadline creating effect whereas, if there is an obligation to lay a statement within 12 months of the original, because of the way organisations work, there will be a tendency at least if a thing is dragging on to avoid having to make that statement on the date specified. I believe this amendment will be valuable. The Minister has shown himself in this debate willing to accept reasonable suggestions from this side of the House. He will probably agree on reflection that this is a reasonable enough suggestion and I hope he will be able to see his way to accepting it.
On a point of clarification may I ask Deputy Bruton what is he really saying — if no order has been made or if no decision has been taken?
What the amendment says is that, if within a year of its having been laid before each House of the Oireachtas — there is a bit of mis-drafting; the amendment is not properly drafted — a decision has not been made on a recommendation by the commission, the Minister shall lay before each House of the Oireachtas a report indicating why a decision has not been made.
It is even more reasonable than implementation.
I cannot tell Deputy Bruton why he did not make a statement in a particular instance when he was Minister. I do not know.
I have to concede that point straight away.
It appears that in section 8 (4) there is a sufficient safeguard. I am prepared to look at the Deputy's amendment but I could not take that wording on board for a start. As I see it, there are sufficient safeguards. The House has its own ways of being accountable. I cannot accept that nobody knows when Question Time is coming on. It is pretty well ordered. We do the rounds as everybody knows, and the information can be got in the House.
As someone who puts down quite a lot of questions I find, as the Ceann Comhairle and Leas-Cheann Comhairle have often advised Deputies, they are in no way responsible for the answer that may be given to a question. The answer may not allude to any reason why a decision may not be given, or it may just state, as many Dáil replies do, that the matter is under active or serious consideration. It may not give the reason a decision has not been taken. This amendment seeks to provide that there should be some accountability. If the amendment provided that there had to be implementation within a year there might well be problems. For instance, if there were two general elections held in one year it might not be possible to get it drafted within a year. All that is required is a short statement from the Minister indicating that the Government have decided to proceed with the recommendation. A statement of intent is sought or else an explanation. That is eminently reasonable.
Unlike Deputy Bruton, I have not had the honour of working with civil servants but I was in no way surprised by the Civil Service text which the Minister read out in his initial reply. My impression is that anything which creates additional accountability in the Civil Service is not approved of. I ask the Minister to make an independent decision and to accept an amendment on Report Stage.
I will not join in any abuse. The prospects of getting this amendment through depend on mutual goodwill among those who are listening to the debate as well as participating. I will suggest a possible improvement on my amendment which I will put down on Report Stage. Relying on section 8 (4) of the Principal Act, I would suggest that the subsection might be redrafted as follows:
If the Commission, in a report to the Minister, recommend the making of an order and the Minister decides not to make any order or has not made such an order, he shall, as soon as possible or within a year whichever is the lesser time after he has received the report, lay before each House of the Oireachtas a statement giving the reasons for his decision.
That would deal with cases where he has made a positive decision not to make an order and also with cases where he simply has not made any decision. It would put a limit of one year on the lodging of such a statement.
I accept that some gremlin got into the drafting of my amendment and that there is some tautology. I do not think it is acceptable in its present form. The amendment I suggest to subsection (4) is within the spirit of what is intended in the Principal Act. It is not a very radical departure. The introduction of a time limit of one year would deal with the minority of cases which are not acted upon.
Is Deputy Bruton suggesting that the Minister might bear in mind the text he read out for Report Stage?
I will do so. Will Deputy Bruton put forward the amendment?
I will, but if the Minister is happy with the idea and puts forward the amendment, that would be preferable.
The way it is there the Minister might easily sidestep the issue and make a decision in his own mind. The civil servants who work for me are not against full accountability and neither am I.
I will put forward another amendment along the lines I have indicated.
Amendment, by leave, withdrawn.
Sections 18 to 21, inclusive, agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."
Sections 10 and 22 deal with new services which are now being included. Could the Minister clarify why under section 22 (4) a local authority is exempt but a health board is not exempt? These new areas were listed in section 10 and one of the exemptions related to a local authority. This was questioned this morning. Deputy Bruton gave the example of refuse collection as one area whose exemption was questionable. Why are the actions of health boards being treated differently from those of local authorities since they are within the same ambit?
This section relates to the law banning misleading advertising, not restrictive practices in the conventional sense. "Service" includes any professional service but does not include banks, any service provided by a trustee savings bank, any service provided under a contract of employment or any service provided by a local authority within the meaning of section 2 of the Local Government Act, 1941. The Act of 1978 is the Consumer Information Act. Does this section mean that banks are not to be subject to the law against misleading advertising?
No. Section 22 relates to the Mergers, Take-overs and Monopolies (Control) Act only. Section 28 brings in the banks.
Excuse me, I am confused. The Consumer Information Act was also passed in 1978.
The words were never excluded. This is just a tidying up exercise in relation to local authorities, for the same reason as I gave this morning. There is nothing new in that.
Is it the position that local authorities are excluded?
Yes.
Why should they not be treated in the same way?
They do not engage in the kind of services we are taking in here. Services provided by local authorities within the meaning of the Local Government Act, 1941, will continue to be excluded. Most of these services — road repairs, bin collections and so on — are carried out exclusively by local authorities on a non-commercial basis so there is no element of competition involved. These activities are closely regulated by the local authorities themselves and by the Department of the Environment. Services provided under contract employment will also continue to be excluded from the Act. They are already governed by the others.
Question put and agreed to.
SECTION 23.
Amendment No. 7 not moved.
NEW SECTION.
I move amendment No. 8:
In page 12, before section 23, to insert the following new section:
"23.—The Schedule to the Act of 1978 is amended by the addition of a new paragraph (j):
`(j) the extent to which any damage caused in the short-term under the headings listed in this Schedule, will or is likely to be mitigated by the entry of new competition into the business in accordance with their right to freedom of establishment under the Treaty establishing the European Economic Community.'.".
This amendment widens the criteria in the Mergers, Take-overs and Monopolies (Control) Act, 1978, which have to be taken into account in deciding whether a merger should be allowed. The Mergers, Take-overs and Monopolies (Control) Act was passed in 1978 but the criteria, strangely, make no reference to the likelihood that a dominant position created in the market by a particular merger is in practice vulnerable to competition from outside Ireland, but from within somewhere else in the Community, in that under the Treaty of Rome there is a freedom of establishment right for other operators. Let us say that the Minister is worried about a merger between two firms in the bakery business which would give them, say, a 70 per cent control in the market on the figures at that time and that the Minister does not want that to happen because he feels they might make over large profits. If there was no freedom for bakers from outside the Republic to establish here that could be a very serious matter. On the other hand if — as there is — there was complete freedom for others to come in here, as they certainly would do if that merger gave the new firms such a dominant position that they were able to make excessive profits; those profits would attract somebody else into the market, either they would attract somebody else to sell goods here or would come in here and start producing within the jurisdiction.
My amendment would simply add to the list of criteria to be taken into account, the extent to which any damage caused under the headings listed in the Schedule will be mitigated, or is likely to be mitigated, by the entry of new competition into the business in question in accordance with their right to freedom of establishment under the Treaty establishing the European Community. This amendment would not mean that the Minister would be in any way prevented from banning a merger because there was the right of establishment for somebody else. All it means is that the Act, which at present takes no account of the right of freedom of establishment, would take that into account as well as all the other factors that it already takes into account in coming to a conclusion as to whether a particular merger or monopoly should be stopped or broken up.
It is strange that the Act which was passed five years after we had entered the EC did not advert to the fact that many apparent monopolies are not as secure as a result of the freedom of establishment provisions as they would have been before we entered. The amendment here would simply add this to the list of criteria that have to be taken into account. It is a useful improvement to the legislation and I hope the Minister will accept it.
In this amendment, Deputy Bruton is proposing that a new criterion should be added to the list of criteria already contained in the Schedule to the Mergers, Take-overs and Monopolies (Control) Act, 1978. This Schedule and the criteria contained therein relate to sections 7(b) and 8(2) of the Act. What is provided at present is that the examiner in his investigation of a proposed merger, which has been referred to him by the Minister, must have regard to the criteria in the Schedule. Similarly under section 8(2) the examiner in reporting on his investigations must give his opinion as to whether the proposed merger or takeover would operate against the common good in respect of the Schedule criteria. These functions which at present are carried out by the examiner will in future be carried out by the Fair Trade Commission by virtue of section 7 of the Bill.
The criterion Deputy Bruton is proposing for inclusion in the Schedule is that one of the matters to be taken into account in deciding whether a proposed merger or takeover should be allowed is the extent to which any damage caused in the short term is likely to be mitigated by the entry of new competition into the business concerned. This addition is not necessary as the aim of the provision is implicit in paragraph (a) of the Schedule which states:
The extent to which the proposed merger or take-over would be likely to prevent or restrict competition or to restrain trade or the provision of any service.
The effect of the proposed provision would be to qualify paragraph (a) in the Schedule but only in a partial and incomplete way. Why refer to competition arising from the right of establishment and not from the rights of free trade in goods or in services? Why refer only to new competition arising from the exercise of Treaty rights and not to competition arising from the normal operations of the market? I would refer the Deputy to section 9(3) of the Mergers, Take-overs and Monopolies (Control) Act, 1978, which states:
Before making an order under this section the Minister shall have regard to any relevant international obligations of the State.
What the Deputy is proposing is well catered for in this section so it would be bad, it would be incomplete and it would cause confusion to include the amendment now. Perhaps what is stated in section 9(3) will satisfy the Deputy.
The obligations of the State would include freedom of establishment; they are more or less rights that the individual has and are not solely enforceable against the State, they are enforceable against everyone.
The Treaty would take that into consideration; why would it not?
Amendment, by leave, withdrawn.
Section 23 agreed to.
Section 24 agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."
I would like clarification on this section. Does this refer to the people who are priceline inspectors being referred to operate under the new office? In that context it is often said — especially if you table a parliamentary question, a procedure the Minister is so fond of — that the Minister still retains the full powers under the Prices Act, 1958, in respect of price control. Do I take it that these officers would still be available to do priceline work if the Minister saw fit?
Yes.
Question put and agreed to.
Sections 26 and 27 agreed to.
SECTION 28.
I move amendment No. 9:
In page 15, between lines 4 and 5, to insert the following:
"(e) section 25 of the Act is hereby repealed.".
This amendment proposes to repeal section 25 of the Consumer Information Act, 1978, which states:
A contract for the supply of any goods or the provision of any services shall not be void or unenforceable by reason only of a contravention of any provision of the Acts or this Act.
Basically that means that failure to comply with the legal obligation of truthful advertising shall not interfere with any existing contractual right; in other words, the pursuit of consumer information rights and the assertion of the guarantee against misleading advertising does not invoke civil law. It is a right that can be asserted only on the basis of criminal prosecution.
The purpose of this amendment is to suggest that if a person places an advertisement which is misleading then the contract to which the advertisement led is void. I understand the difficulty with this proposal could be that if the contract is void it could be void for both sides; in other words, the consumer who had a right, who had paid for something — if there happened to have been a misleading advertisement — even though he himself was not misled could find his contract would be void. That is not the intention of the amendment but it could be its result. For that reason I do not propose to pursue this amendment. What I was trying to get at was something more on the lines of what Deputy Yates referred to earlier when he expressed a preference for having legislation as far as possible enforced by civil law rather than having to rely on criminal sanctions.
One possibility — but I would not be over-enthusiastic about it — would be to say something along the lines that the person who sells goods and is found to have used misleading advertising as a means of selling them shall not have any contractual rights against the consumer but that the consumer would retain all of his contractual rights against the seller; in other words, the only person who would lose his contractual rights would be the person who had committed the offence. This would render the use of misleading advertising a lot less attractive in that not only would there be a fear on the part of the misleading advertiser that he would be liable, if caught by the Director of Consumer Affairs, to a criminal prosecution — and I suppose there is a possibility that many people would not be caught — but also he would face the prospect that if he went to collect a debt owing to him by somebody who had acted on the basis of a misleading advertisement, he could not collect that debt. That would make people a lot more careful about the accuracy of advertisements.
The amendment, as drafted, is not one I would wish to press. Perhaps the Minister could look at the refinement of it I have just suggested between now and Report Stage to ascertain whether it would have any advantage. I am not certain there would be but perhaps for the sake of debate I may draft an amendment and talk about it at a later stage. It would be helpful if the Minister could give me even a preliminary response to the idea at this stage.
There are fairly strong civil remedies available already. For instance, if a buyer of goods considers he has suffered loss by virtue of misleading advertising or misdescription of goods he will have a right of action at common law on the basis of misrepresentation. In such circumstances he will, at the very least, be entitled to damages. Furthermore, if he can show that a claim made in an advertisement or in a description of goods formed an integral part of a contract the courts may — as they have done in the past — decide that the misrepresentation was, in essence a term of contract. In such a case the seller would be liable for breach of contract. Taking this one step further, if the court was of opinion that the term so introduced was fundamental to the contract it could order that the entire contract be set aside on the basis of common law doctrines of fundamental breach.
I consider that the balance of remedies available to the consumer at present by virtue of the combined effect of section 25 of the Consumer Information Act, 1978, and the common law rules relating to misrepresentation and breach of contract provide far greater protection for the consumer than would be the case if section 25 of the Act were to be repealed. It is my view that, if repealed, it could work against the best interests of the consumer in the manner in which we have been discussing.
Amendment, by leave, withdrawn.
Question proposed: "That section 28 stand part of the Bill."
On Second Stage I mentioned my dissatisfaction with certain elements of the Consumer Information Act, 1978. In relation to section 28 of this Bill, which seeks to amend that Act, perhaps I should quote section 28 (a) which reads:
the substitution for subsection (1) of section 13 of the following subsection:
"(1) Where an advertisement in relation to the supply or provision of any goods, services, accommodation or facilities is published and does not include the name and address of the person who procured such publication or his agent, the publisher of the advertisement, shall, if the Director or an officer of the Minister so requests within 12 months of the publication of the advertisement, give to the Director or officer the name and address of such person or his agent.".
Will the Minister say whether that covers in any way the new area of advertising which is a lot more subtle and slick than that prevalent in 1978 at the time of passage of the Consumer Information Act? Here I am referring to public relations, as they are commonly known, whereby there are supplements in newspapers —The Motoring Times for example — supplements such as property supplements, when there are advertisements in different parts but the central part is an article perhaps written by the editor of the particular supplement. What the consumer is not told is that that article is also bought and paid for by those who placed the advertisement in the remainder of the page. What I am endeavouring to ascertain here is whether in such instances there is any obligation on the advertiser to declare that this whole page is bought and paid for, that the particular correspondent may not be giving his totally objective opinion such as he would give in his normal weekly column but rather that he is filling in something that is a money-spinner for that medium? Under the law as it stands I understand that one must state somewhere on the relevant page that it is an advertisement but that can be in very small print. The position obtaining is totally unsatisfactory.
I should like to ask is it in order that the Minister considers this on Report Stage but, more especially — if he cannot — that he would give this matter his urgent attention. I believe the framework within which the Consumer Information Act was drafted in 1978 and the type of misleading advertisements its provisions endeavoured to deal with are now out of date. The competitiveness in sharp marketing practices is such that one cannot but realise that time has moved on. We were all made aware of this recently when a motor car company advertised the comments of individual motoring correspondents on the advantages of their cars. Of course, these motoring correspondents were well wined and dined and given details of all the different benefits of the attributes of the cars. What I am trying to get at here is the subtlety of public relations and the hoards of new public relations companies that have been set up in the last couple of years, where the pace of that development has been kept up by this Act. I wonder whether this section can, in any way, deal with that new phenomenon.
We are not dealing here with an overhaul of the Consumer Information Act. Paragraph (a) in section 28 is purely a technical provision and is consequent on the provision of paragraph (c) of this section of the Bill which removes the power to prosecute which local authorities currently have in relation to offences under the Consumer Information Act. I do not know how the Deputy managed to get that discussion in under that technical section, but he did well.
Under section 13 of the 1978 Act as it stands, the Director of Consumer Affairs, or an officer of the Minister, or an officer of the local authority may request information in relation to the publication of advertisements. This amendment removes the reference to a local authority. It is purely technical and nothing more than that.
I thank the Minister for that clarification.
Deputy Yates will be happy now that that mental irritant which he had and which no doubt he was going to express on some section has been heard. He was a little out of order.
I am most orderly, a Leas-Cheann Comhairle. I thank the Minister for that clarification, but it is most unfortunate that we are only dealing with technical amendments when substantial amendments are required in this area.
Question put and agreed to.
Sections 29 and 30 agreed to.
NEW SECTIONS.
In regard to amendment No. 9a, amendment No. 9b is related and amendments Nos. 9c and 9d are alternatives. It is proposed to take the four amendments together.
I move amendment No. 9a:
In page 15, before section 31, to insert the following new section:
"31. Section 26 of the Act of 1978 is hereby amended by the deletion of subsection (4) (a) and the substitution therefor of the following:
`(4) (a) Every order made under section 9, 10, 11 or 12 of this Act, or under paragraph (b) of this subsection shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling it is passed by either such House within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done under it.'.".
There has been a bit of a problem here with some of the orders under the Consumer Information Act. For instance, orders were being made recently to provide for disclosure of the true rate of interest in regard to consumer credit transactions; this order was laid before the Dáil in March and was not taken until last week. It was laid before the Seanad as well and was taken there quite quickly. The reason for that is that the Seanad is not dealing with financial business and perhaps, not being quite as rumbustious a place as far as debate is concerned, tends to have more time for dealing with matters and tends to deal with things more quickly. I am not trying to provoke Deputy Colley in any of this.
They have been made to work harder this year for some unknown reason.
I believe the Seanad should continue.
The amendments I am putting forward are alternatives. One would dispense altogether with the requirement for a debate in respect of Consumer Information Act orders and also in respect of Sale of Goods Act orders. These are basically orders extending the requirement to give truthful information or extending the requirement in regard to the particular nature of contracts — either that contracts should be specified in writing or that certain contracts should have a certain typeface so they can be easily read. They are not contentious issues by their nature unlike, for instance, some of the orders that might be made under the Restrictive Practices Act where there is a contentious balancing of various interests and it is appropriate that orders under the Restrictive Practices Act should, in all cases, have to be approved here. I am not proposing to change that but in respect of orders made under the Consumer Information Act and the Sale of Goods Act, there is a case for a speedier procedure, particularly in regard to approval by the Dáil. It is a pity that the consumer credit order which was very important and valuable to a vulnerable section of the community was not in force from March right up to last week because it was not possible to find time here in the House to debate it. I am not making any reference as to why that happened. It is really irrelevant. We know that the House is pretty busy and there are pressures on the Government Whip to get other legislation through. I am not trying to cast any aspersions on him or anyone else. It could have happened under any administration.
What I am seeking however is an improved procedure. There is a value in having these orders debated somewhere, if not in the Dáil, at least in the Seanad. The debate serves the purpose of highlighting the fact that the order is actually being made. Therefore, I have an amendment drafted which is the one I would prefer and which I hope is the one the Minister will be able to accept. I agree that what I am proposing is radical in the sense that it has never been done before. It provides for the retention of the requirement for a debate on an affirmative motion in the Seanad but that as far as the Dáil is concerned the order could be made simply by the laying of the order before the House, and if it is not annulled within 21 days it takes effect. I hope therefore that the Minister will be able to accept the amendment to that effect allowing for a debate in the Seanad.
The Minister will probably agree that in regard to a new order of this kind a certain value is served by having the thing debated, in that public representatives become aware of it and there is some measure of publicity. But that debate can take place just as easily in the Seanad as in the Dáil. There is certainly no need for two debates, one in the Seanad and one in the Dáil. I therefore urge the Minister to opt for the amendment that would allow the debate on the requirement to continue in the Seanad.
I agree with the principle of what the Deputy is saying. It was brought home forcibly to both of us and to the whole House. But the order in relation to consumer credit was made 13 months ago and it took that long to find its way into the House in the first place, and finally got through last Friday. It certainly would have been a great help to a very vulnerable section of the community, especially in the times in which we live when we hear and read enough in the papers about people being misled in relation to the true cost of credit. In debating that order we agreed that it was ridiculous. We are not passing the buck of blame around between one side and the other. I had it on the Order Paper for ages and I just could not get it here. I am certainly not against it, as I have shown throughout this Committee Stage. I am here to improve anything we can improve.
In response to what the Deputy is saying, I agree with the principle in (a) and (b). This will be brought forward on Report Stage with very minor changes in the wording and we will all be doing a better job for passing these orders which are important. We are not trying to bypass the Dáil or otherwise, as the Deputy remarked the last day, the way it stands at the moment is to the advantage of the Minister of the day because he is assured of some publicity but there are other ways and means for Opposition Deputies to get their say as well.
Could the Minister comment on (c) and (d) which would continue to have the debate requirement in the Seanad but would allow for the speedier procedure in the Dáil?
It would have to be subject to detailed examination to ensure that it was in order to take that kind of step. That is why I put forward what I believed was a considerable compromise.
Would the Minister ask the draftsman and the legal people who advise him in these matters also to look at that amendment between now and Report Stage?
It is certainly strange to ask that it be discussed in the Seanad and not the Dáil.
Yes.
The point is reasonable and there should be a debate somewhere. It is easier to get debating time in the Seanad than in the Dáil.
It is not a matter that you could bow to straight away, without detailed consideration.
I accept that.
I find myself in agreement with the principle of speeding up the making of orders and the bringing of them into effect. I do not think that I could agree with having a debate heard in the Seanad and not in the Dáil. After all, I and my party believe in abolishing the Seanad for the very reason that it is irrelevant and that the real debate and real responsibility rest here in this House. We are the people who are responsible to the individual electors, rather than those Members of the Seanad.
That is not the reason that your party is in favour of that policy.
Whether the Deputy believes it or not, that is my belief. It would be a travesty of the system of democracy if this amendment were to go forward.
The Opposition will always have an opportunity of putting down an annulment motion in the House, which can create the debate, if they so desire at any stage. Under the Consumer Information Act of 1978, the order must be published and there will be plenty of attention and notice drawn to it as it has to be published in Iris Oifigiúil and at least one daily morning newspaper. It is printed at least two months before the date of the making of the order. Attention will be drawn to it and when it is published a statement will be issued about it and the Opposition will have the opportunity of putting down an annulment motion. That would streamline the operation, rather than what we have seen here on the credit order for the last 13 months. It is a move in the right direction. I could never understand why the old procedures had to be carried out.
There is one problem. That is, that although the Opposition can do that, the Government have taken the view in the past in regard to motions to annul orders under this procedure that they must be debated in Private Members' time. Originally, there was an obligation on the Government, as I understand it, that if a motion to annul an order were put down the Government provided time from their own time for that, on the basis that it was an important enough issue and something that an individual Deputy could bring up if he objected to a particular order, to get it debated. That was the case when I came into the House in 1969. Sometime, I think in the early seventies, the Government changed their view and said that if an annulment motion was put down it had to be debated in Private Members' time. The Minister probably knows very well that there is great competition in regard to Private Members' time——
And growing competition.
——to what is put in. There is a desire on the part of various people to put in only matters which have a high political profile. That means that some little order that has been made and that is foolish in some respects will not be allowed time within so-called Private Members' time. This is, in fact, not really Private Members' time — it is Opposition party time.
I do not think it is possible for the Minister to change the order of the House in this matter. As he is inclined to accept this amendment could I ask him if he could inquire, through the Government Whip, whether in the unlikely event that an order is made under the new procedure and there is a motion to annul it, that motion would qualify for an hour's debating time from the Government, or would it be required to go in for the fulldress, three hour debate in Opposition party Private Members' time? It seems that many of these annulment motions would probably contain one point that the Deputy wanted to make. The whole debate could be over in half an hour if the Government were to provide that time on, say, a Friday or a Thursday. I understand that the policy of precedent has been in recent times that such orders are not dealt with in that way. They have to take their place in the queue for Private Members' time, which means never. Perhaps the Minister could look into that, in consultation with the Minister of State at the Department of the Taoiseach, to see what would be the policy at the moment?
I shall certainly do that, but would not like to be taken as in any way committing the Government to provide time. We are trying here to improve the existing situation. By going along with 9a and 9b we would be going a long way towards it. In relation to Private Members' Time, I know that there is growing competition for it. I shall inquire from the Chief Whip. The Opposition have Private Members' Time and I am not going to enter into the argument as to what they should use it for. They will always use it to their own best advantage and that is what we expect them to do.
Which means, in practice, that small items that have not a high political profile but might be worth debating, will just not be debated. That is why it might be useful to have a procedure for short debates on motions to annul, which would arise very rarely.
Since I became a Member of the House I have been struck by the annulment procedure, that it is so restrictive. If it is written into legislation that it is open to any Member of the House to put a motion forward to annul an order and that order is brought in through Government business, then it seems that any motion to annul should also be seen as Government business rather than Private Members' Business and I shall be putting that case very strongly. I do not know if it is in Standing Orders or a precedent. If it is a precedent, it should be challenged and challenged strongly.
The Government will have done their business at that stage by bringing in the order. It could equally be said that it is Opposition business to decide whether they want to move a motion to annul it or not.
It could be a member of the Government's own party, a backbencher, who would want to annul it.
Exactly.
I think that the Deputy is a lot longer around this House than I am and he has yet to see the day when a Government backbencher, irrespective of what Government is in power, brings in an annulment motion on a Government order.
They are prepared to give press interviews condemning their colleagues at great length in recent weeks. They are becoming dissidents to an unprecedented extent. If what has happened in the last week happened when we were in office, there would be a lot more said about it.
A championship team, not a league team.
A bad one.
Is the amendment withdrawn?
We are taking the Deputy's aim on board and looking to (a) and (b) and there may be a likely change.
I accept that.
Amendment 9a, by leave, withdrawn.
Amendments Nos. 9b, 9c, and 9d, not moved.
We come to amendment No. 10 in the name of the same Deputy.
I move amendment No. 10:
In page 15, before section 31, to insert the following new section:
"31.—Section 10 of the Act of 1980 is hereby amended by the substitution in the Table for section 14 of the following new section:
`14.—(1) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of acceptable quality.
(2) For the purposes of this Act, goods are of acceptable quality if they meet the standard that a reasonable person would regard as acceptable, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods—
(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,
(b) appearance and finish,
(c) freedom from minor defects,
(d) safety, and
(e) durability.
(4) The term implied by subsection (1) above does not extend to any matter making the quality of goods unacceptable—
(a) which is specifically drawn to the buyer's attention before the contract is made,
(b) Where the buyer examines the goods before the contract is made, which that examination ought to reveal, or
(c) in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample.'.".
This is a little complicated. It relates to the definition of merchantable quality in the Sale of Goods and Supply of Services Act. As the House is aware, there is an obligation on the seller of any goods under that Act to ensure that the goods are of merchantable quality. There is an implied term to that effect in any contract. Merchantable quality is defined in various places in the Sale of Goods and Supply of Services Act, 1980, and I quote from section 10 (3) of the new section 14 which contains the following definition:
Goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances, and any reference in this Act to unmerchantable goods shall be construed accordingly.
A similar definition is contained in section 15 (3) of the Sale of Goods and Supply of Services Act. The definition merchantable quality which is used in the Sale of Goods and Supply of Services Act, 1980, is similar to the definition which is used in the British legislation. Section 14 (3) of the Sale of Goods Act, 1979, in Britain refers to there being an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is the purpose for which the goods are commonly supplied, except where the circumstances show that the buyer did not rely on or it was unreasonable for him to rely on the skill or judgment of the seller or broker.
I understand the definition of merchantable quality in the British Act is the same as the definition contained in the Irish Act. However, the adequacy of this definition from the point of view of consumer protection has been the subject of an examination by the British Law Commission and the Scottish Law Commission in a report presented to the Houses of Parliament in May 1987. They found a number of deficiencies in the definition which this amendment is designed to remedy in so far as Irish law is concerned. The definition of merchantable quality in the British legislation did not include explicitly the appearance and finish of the goods in question, it included only that they be fit for their principal purpose. In other words, a car could have scratched paintwork or have oil stains in the inside but so long as it could travel along the roads safely it might be deemed to be of merchantable quality and hence not capable of being rejected by the consumer.
This deficiency particulary arises from a British court case, Millars of Falkirk and Turpie, in connection with a car which was reported in the Scottish Law Times, 1976. There have been a succession of other judgments which have dealt with this subject but the conclusion of the Law Commission in Britain was that the question remains open as to whether every small matter which might be required to be corrected in a complicated new artefact, such a car, renders the goods unmerchantable. The commission recommended an amendment to the British law along the lines of the amendment I have tabled here to include appearance, finish and freedom from minor defects as being qualities which should be present for a product to be deemed to be merchantable.
The amendment also seeks to include the safety of the goods and this was not explicit in the existing British law. To the best of my knowledge, it is only explicit in our law in respect of motor cars. It is not explicit in respect of any other goods sold. There are special sections in the Sale of Goods and Supply of Services Act which contain a safety requirement in regard to motor cars but that is not a requirement in regard to any other goods. The new section which I propose also includes a reference to the durability of goods. A motor car may be of merchantable quality on the day you buy it, in other words, it may travel the first 100 miles, but if it is not going reasonably well 5,000 miles later it could be reasonably argued that it was not of merchantable quality in the first place. That is not explicit in the definition of merchantable quality currently used. My amendment would introduce the concept of durability explicitly into the law.
There are a number of exemptions contained in the amendment and these would not allow the consumer to rely on the law if the defects were specifically drawn to his attention or if he had examined the goods before he made the contract and thus should have seen the defects. There are exemptions but they are not automatic in all cases. That is one of the recommendations of the British Law Commission. In the nature of things it will probably find its way into British law in two or three years time and in the nature of things it will probably be considered for introduction into Irish law in about ten years time, as things tend to follow their imitative course. I do not say that in any smart-aleck way because it is only normal that people look to other jui dictions where the legal systems and language is similar to see what is happening there, but it would be useful and something of value if we could have acted on a particular matter first and have the British finding out how it worked here and following us rather than the other way around. It is in that spirit that I put forward this amendment.
It may be argued that our provisions are, in fact, stronger than those contained in the original British legislation which was enacted the year before ours but my reading of the legislation suggests that the wording is very similar and if there are deficiencies in the British legislation in the matters I referred to these deficiencies would apply here also.
I would be grateful if the Minister, if he is making the case that the British legislation is different, would deal seriatim with the specific matters contained in the amendment and show how our legislation deals with those because it is probable that some, if not all, of the matters contained in my amendment are not dealt with in our definition of “merchantable quality”. This amendment is an enhancement of consumer protection. It is not an amendment introduced off the top of my head. It is based on a fairly extensive study which is contained in the document which I have here. I know the Department will have received a copy of this document and have probably studied it as well.
I am glad for once to be able to tell Deputy Bruton and the House that we are not behind but ahead of UK legislation. I am satisfied that our definition is stronger than that in the UK legislation. What Deputy Bruton is proposing to replace is a provision in section 10 of the Sale of Goods and Supply of Services Act, 1980, which itself replaced an earlier provision, the Sale of Goods Act, 1893. The provision essentially provides that, where a seller sells goods in the course of a business, a term will be implied into the contract of sale that the goods are of "merchantable quality".
The section goes on to define "merchantable quality" as meaning that the goods are as fit for the purpose or purposes for which goods of that kind are commonly bought and — this is important — as durable as it is reasonable to expect having regard to any description applied to them, the price if relevant, and all the other relevant circumstances. Under the other relevant circumstances, safety as expressed by Deputy Bruton is contained therein. The effect of this term being implied in a contract for the sale of goods is that the term will apply to every such contract whether the contract is written or not and whether the term is expressly stated to be included in the contract or not.
What Deputy Bruton is proposing is that the provision described above should be replaced by a new provision which would insert a new phrase that of "acceptable quality" for the present "merchantable quality". This new phrase he proposes should be defined as follows:
Goods which are part of a contract should meet "the standard that a reasonable person would regard as acceptable, taking account of any description of the goods, the price (if relevant) and all other relevant circumstances".
In addition, the Deputy proposes that the term "the quality of goods" should be defined as set out in subsection (3) of the Deputy's amendment.
The proposed amendment appears to be based, as the Deputy said, on a recommendation contained in a joint report recently published in the United Kingdom by the Law Commission and the Scottish Law Commission on their examination of certain aspects of the law relating to the sale and supply of goods. However, it is important to realise that our definition of "merchantable quality" as presently contained in the Sale of Goods and Supply of Services Act, 1980, is considerably more beneficial to the consumer than its current equivalent in UK law. The essential difference between our provision and that contained in the UK Supply of Goods and Services Act, 1982, is the inclusion in our law of the provision that goods, if they are to be considered to be of merchantable quality, must be "as durable as it is reasonable to expect, having regard to any description applied to them".
This element of durability is contained in subsection (3) of Deputy Bruton's proposed amendment. So, it can be seen that a provision on the lines proposed by Deputy Bruton, and recommended in the UK by the law commissions, would considerably strengthen UK law in this area. It is not considered, however, that the adoption of this amendment in this country would provide the consumer with any greater protection than he has at present.
I should point out, furthermore, that the amendment proposed by Deputy Bruton which would, effectively, remove section 14 of the 1893 Act, as inserted by the 1980 Act, would have the effect of repealing other aspects of section 14 which are of value. In particular, the removal of subsections (4) and (6) would be undesirable. Subsection (4) provides that where a buyer of goods makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied. This, it is considered, is an important provision from a consumer protection point of view and should not be removed. Similarly, subsection (6) should remain as it imposes liability on an agent to the same extent as liability would be imposed by virtue of section 14 on a principal. Here again, the removal of these subsections would reduce the protection available to the consumer.
I think that our definition is stronger than the UK one and the consumer is better looked after here than he is in the UK at present. Maybe they should amend their legislation.
I am inclined to accept what the Minister said. There is the reference to "appearance and finish and freedom from minor defects" in my amendment which is not contained in their existing definition. I will consider whether or not it is worth attempting to incorporate those in a Report Stage amendment. I am not sure, but I will consider it.
Recently I spent time reading the annual reports of the past several years by the Director of Consumer Affairs. It seemed obvious from looking at the statistics in those annual reports that his powers of prosecution are mostly under the Consumer Information Act where he takes the case himself, as opposed to the Sale of Goods and Supply of Services Act where it is up to the individual to take up the case.
There were a number of instances dealing with holidays and different items where he brought the cases to court and lost a minority of them. That would suggest to me to have less confidence than the Minister might have in the existing law. I would like if the Minister could respond to the query about whether he and his Department have any analysis of unsuccessful prosecutions since the passing of the 1980 Act and any areas where there are loopholes that could possibly be tightened. The Minister will be aware that the ban on advertising of low cost goods was found to be defective because of a loophole. It might well be the case that Deputy Bruton's similar definitions might have a lot more clarity about them, given their source — the Law Reform Commission — and are worthy, therefore, of greater consideration.
What Deputy Yates is talking about is relevant to the Consumer Information Act. The prosecution he spoke about has nothing to do with this Act good, bad or indifferent. It is not relevant in the context of this Act. It comes under the Consumer Information Act. The prosecution is taken by the Director of Consumer Affairs.
Perhaps the Minister can clarify a point for me. I understand that the definitions set out in amendment No. 10 are definitions for "merchantable quality". Is that correct?
Yes.
Are these to amend the 1980 Act?
To amend the Sale of Goods Act. Of the prosecutions taken by the Director of Consumer Affairs, only the holidays were under the Consumer Information Act.
Do the Department keep any information by way of case law about the implementation of this in a civil litigation or a criminal prosecution? Do the Department monitor these court cases to see if there are defects? On a rare opportunity such as this when we are reviewing the Principal Acts can the Minister say if consideration is given to such amendments because of the results of certain cases?
The Director of Consumer Affairs, in particular, would be aware of it. There is no doubt that the results of these cases are taken into consideration when bringing forward amendments. In earlier sections I referred to court cases and so did Deputy Bruton. They are part and parcel of ongoing monitoring by the Director of Consumer Affairs.
Amendment, by leave, withdrawn.
I move amendment No. 11:
In page 15, before section 31, to insert the following new section:
"31.—Section 20 of the Act of 1980 is hereby amended by the insertion in the Table thereto of the following new section:
35A.—(1) If the buyer—
(a) has the right to reject the goods by reason of a breach on the part of the seller that affects some or all of them, but
(b) accepts some of the goods, including, where there are any goods unaffected by the breach, all such goods,
he does not by accepting them lose his right to reject the rest.
(2) In the case of a buyer having the right to reject an instalment of goods, subsection (1) above applies as if references to the goods were references to the goods comprised in the instalment.
(3) For the purposes of subsection (1) above, goods are affected by a breach if by reason of the breach they are not in conformity with the contract.
(4) This section applies unless a contrary intention appears in, or is to be implied from, the contract.'.".
This is also based on a recommendation of a report of the same UK Law Commission. The general rule under British law — I think it is the case here from my inexpert reading of our legislation — is that the buyer who accepts some of the goods which are part of a contract is treated as having accepted all of them and, having accepted some of them, he is unable to reject any of them even if he finds that some of the goods he receives subsequently are defective. For instance, he is not allowed to reject any of the defective goods and keep the remainder. He will have to choose whether to reject the whole lot or accept them all.
My amendment seeks to give a general right of partial rejection in cases where some of the goods delivered to the buyer do not conform with the contract requirements. The buyer would then no longer be compelled to reject all the non-conforming goods; he would have the freedom to reject some of them and keep some of them. My amendment is in line with the US uniform and commercial code and with the proposals made for the reform of the law in Canada. In my view it is worthy of consideration and I hope the Minister will give us his views on it.
What Deputy Bruton is proposing is that a new provision be inserted here to provide that where a buyer has a right to reject goods, by reason of a breach of contract on the part of the seller, but accepts some of the goods, he does not by accepting them lose his right to reject the rest. As with amendment No. 10, amendment No. 11 seems to be based on a similar recommendation made in the UK by the Law Commission and the Scottish Law Commission. The Deputy's amendment is based on one recommendation and to take it out of context is very dangerous. We are all aware of the size of that report.
The question must be asked whether the type of situation to which Deputy Bruton's amendment relates is, in fact, a real problem in practice. What would normally happen in such a case is that when a buyer receives goods and finds some of them faulty or unacceptable, he will communicate that to the seller. It would then be a matter for agreement between the parties as to whether all of the goods or only those which are unacceptable should be returned. If the buyer agrees to accept some of the goods it would be open to him in doing so to make clear that he reserves the right to reject others. Furthermore, sections 34 and 35 of the 1893 Act, as inserted by section 20 of the 1980 Act, contain a number of safeguards for the buyer in the acceptance of goods and there must be some doubt as to whether it is necessary to go any further than this. It has not been possible to examine all the recommendations in the report I have referred to and I would not be inclined to take one of them out of context. I hope the Deputy appreciates my point.
At least the Minister is not claiming that this provision is already in Irish law.
I am not.
Therefore, there is the possibility that this might be worth adopting. Under British law the buyer who accepts some of the contract goods is deemed to have accepted all of them and will not be able to reject any of them. I should like to ask the Minister if it is his view that that is the law in Ireland.
On the basis of an initial examination that seems to be the case but that view is based on an initial examination.
Does the Minister believe that is a good thing? On the basis of common sense it does not seem to me to be a good thing. There is the risk that, if we do not take the opportunity of this Bill to deal with such matters — I agree that that recommendation was picked out of context because it seemed easier to draft it than others in the short time available to me — it will probably be five years before we will get around to dealing with it again, given the reluctance there would be to review such an Act. We have an opportunity to make a few small and valuable amendments which would enhance the consumer's position. In my view the Minister has not advanced any arguments against my amendment. I propose to resubmit my amendment on Report Stage but, in the meantime, I hope the Minister will have another look at it to see if it is worth while incoporating it in our law.
There may be some merit in the case the Deputy has made and we will have a look at it before Report Stage. However, we will have to be very clear and confident of what the legal position will be if we adopt such an amendment. We will have to have the consequences clarified. I should like to remind the Deputy that there are a number of safeguards for a buyer in sections 34 and 35 of the 1893 Act, as inserted by section 20 of the 1980 Act. However, I am prepared to look at the amendment but I will not go beyond that at this stage. I would not like the Deputy, or the House, to hold up this Bill if legal problems are thrown up along the way. I do not think that is what the Deputy has in mind. If we can accept the Deputy's amendment on Report Stage we will do so.
Amendment, by leave, withdrawn.
Sections 31 to 35, inclusive, agreed to.
SECTION 36.
Question proposed: "That section 36 stand part of the Bill."
Is this a new provision?
It is.
Were there no superannuation for the director before this?
No.
What pension arrangement was made?
We are making the pension arrangements with this new provision.
I take it that they will be retrospective to the commencement of service of the officer in question?
Yes.
A back door job.
The Deputy should not look at me; I am only new in this position.
It happens every day.
Question put and agreed to.
SECTION 37.
Question proposed: "That section 37 stand part of the Bill."
Perhaps the Minister will indicate why he wants section 37.
Under section 18 of the Consumer Information Act of 1978, local authorities were given the power to prosecute for false trade descriptions. This included the offence of sale of short weight/measure. In practice, the only local authority who perform this duty are Dublin Corporation as this is the only local authority with an enforcement agency in the consumer area, namely the weights and measures inspectors. This system of enforcement raises a number of practical problems including: (1) the legislation in so far as short weight is concerned is being enforced only in the Dublin area — weights and measures inspectors outside Dublin are Garda sergeants acting as ex officio inspectors and do not have powers under the Consumer Information Act; and (2) by allowing them power to prosecute for false trade descriptions — weights and measures inspectors in Dublin Corporation now have considerably more powers over and above their weights and measures duties. In effect, they have similar powers to the Director of Consumer Affairs.
Accordingly, it was decided that the powers of local authorities to prosecute for false trade descriptions under the Consumer Information Act would be removed. However, in order to retain the power of Dublin Corporation weights and measures inspectors to prosecute for short weight and to extend this power to all weights and measures inspectors this new section has been included. There is no general offence for sale of short weight in existing weights and measures legislation except in the case of coal.
The wording of subsection (1) was amended to clarify the definition of "sell" so as to avoid possible difficulties in proving an offence under the section. A new subsection (4) was inserted so as to provide powers of entry to weights and measures inspectors for the purpose of checking compliance with the section. Subsections (5) and (6) were inserted to replace the provisions of the old subsection (4) in regard to prosecutions and the definition of an "inspector" under the section. Those two amendments were brought forward to Seanad amendments.
In EC law a provision is operated whereby penalties for commercial offences of this kind are related not to an absolute sum but to the size of turnover of the company in question. Therefore, a company engaging, for instance, in large scale commercial malpractice would suffer a penalty related to the size of the damage done to the community at large rather than a specified amount. I understand that the provisions regarding these fines are dealt with in Article 15.2 of Council Directive 204/62 under which, and I quote: "The Commission may by decision impose on undertakings or an association of undertakings fines of from 1,000 to 1,000,000 units of accounts, or a sum in excess thereof but not exceeding 10 per cent of the turnover in the preceding business year of each of the undertakings participating in the infringement..."
Fines should reflect the seriousness of the offence in financial terms and we are dealing with offences which essentially impose a financial penalty on those who commit the offences in question. It seems that the provisions of Article 15.2 of the Directive which I have just quoted are preferable to the type of provision in this section and, indeed, in other sections of this Bill which simply impose maximum fines. The same maximum applies whether the offence is committed by Quinnsworth or the corner store and whether it is committed over a large range of locations or in just one place.
If we want competition law and consumer protection law to be effective, the punishment should fit the crime. The size of the fine should relate in some sense to the turnover of the company committing the offence, and I think the provision there is reasonable. I ask the Minister to consider between now and Report Stage the possibility of introducing a provision similar to that in the Article I have quoted in respect of all fines under this legislation, not just fines in respect of short weight but in respect of other offences under the Bill. That is a fairer way of doing things. Obviously, an £800 fine is far more severe for a small shopkeeper than it is for a very large multinational corporation. The reference to turnover is a more appropriate way of setting the fine. I ask the Minister to consider this matter seriously.
Does the Minister want to respond? I want to make a different point.
This is a very minor amendment to close the gap that was there. The point Deputy Bruton made would really call for a whole range of legislation in the weights and measures area and I do not think he is suggesting that at this stage. The amendment is merely to close the gap in relation to the powers that were there.
What does the Minister think of the point that we should follow the EC practice of relating fines to turnover in some way? Does he think that reasonable, rather than having the same maximum fine for small shopkeepers as for a large multinational corporation?
Probably it is. I will look at it between now and Report Stage and we will have a further debate on it.
I have a straightforward query in relation to section 37 (6). In my county of Wexford we have, as other rural areas have, a weights and measures sergeant who covers the whole county. The whole thing is quite antiquated. There are no great facilities and all the rest of it, but I will leave that for another day. However, do I take it that under the terms of the 1878 Act, and so on, an inspector's terms of reference of employment are completely unchanged by this in every way?
They are totally unchanged.
Secondly, in the same vein as Deputy Bruton, not dealing with a technical gap but with a slightly wider question, let me ask if the Minister is aware of the farcical situation in regard to legal metrology and weights and measures at present. I know somebody who opened a big supermarket in Athy recently and at the meat counter he met with gross dissatisfaction because he put the weight in kilograms and it seemed to the consumer to be much more expensive compared with everyone else who was doing it in pounds. He was observing the law and he gained a reputation for having high prices because of that. There is a total lack of enforcement in relation to the sale of meat in supermarkets by kilograms. He put up both the kilo price and the price per pound. Anyone who goes to the trouble of adhering to the law becomes pretty cheesed off when he gets a bad reputation on account of it. This is an enforcement point rather than a legislative point. Will the Minister consider very strongly getting some degree of uniformity as regards grocery meat sales?
The conditions of Deputy Yates's constitutent in Wexford are not being changed one iota in relation to that so the Deputy can rest happily with that assurance. In relation to the supermarket in Athy and declaring weight in kilos, the EC Directive provides that it must be quoted in kilos. It can also be declared in pounds but must not be more prominent than the kilos declaration. Food regulations are being enforced——
They are not.
If the Deputy can give me specific incidents, perhaps off the record, we will gladly send somebody down to see what is going on in Athy.
Question put and agreed to.
Section 38 agreed to.
NEW SECTION.
I move amendment No. 12:
In page 18, before the First Schedule, to insert the following new section:
"39.—(1) Section 15 (as amended by section 17 of this Act and as applied by section 8 (3) of the Act of 1978) of the Principal Act and section 16 (as amended by section 28 of this Act) of the Consumer Information Act, 1978, shall not apply to accounts maintained by a financial institution.
(2) Whenever——
(a) the Director considers it necessary for the excercise by him of any of his functions, or
(b) the Commission consider it necessary for the exercise by them of any of their functions,
to examine accounts maintained by a financial institution, the Director or the Commission, as the case may be, may apply to the High Court for an order under this section.
(3) Whenever the High Court is satisfied that it is reasonable to do so and is satisfied that the exigencies of the common good so warrant, it may make an order authorising an authorised officer——
(a) at all reasonable times to enter and inspect any premises of a financial institution where he reasonably believes that there are accounts maintained by it,
(b) to require any director of or person employed by the institution to produce to him any specified accounts maintained by it that are in the power or control of that person or director and to give to the officer any information that he may reasonably require in regard to the accounts, and
(c) to inspect and make copies of or take extracts from such accounts,
subject to such conditions (if any) as it thinks proper and specifies in the order.
(4) (a) In this section reference to accounts maintained by a financial institution shall be construed as reference to any accounts maintained by or for or on behalf of any person in the institution, either solely or jointly with another person or persons, or any books, documents or other records maintained by it relating to such accounts;
(b) in this section——
`authorised officer' means, as may be appropriate, an authorised officer within the meaning of section 15 (6) (as amended by section 17 of this Act and applied by section 8 (3) of the Act of 1978) of the Principal Act or an authorised officer within the meaning of section 16 (as amended by section 28 of this Act) of the Consumer Information Act, 1978;
`books' means——
(i) bankers' books within the meaning of the Bankers' Books Evidence Acts, 1879 and 1959, and
(ii) records and documents of persons referred to in section 7 (4) of the Central Bank Act, 1971;
`director' includes any person occupying the position of director by whatever name called;
`financial institution' means——
(i) a person who holds or has held a licence under section 9 of the Central Bank Act, 1971, and
(ii) a person referred to in section 7 (4) of that Act;
`records', for the avoidance of doubt, includes records recorded and stored electronically.".
The purpose of this amendment is to require the Director of Consumer Affairs and Fair Trade and the Fair Trade Commission to apply to the High Court for an order if, in the course of the exercise of their functions, they consider it necessary to examine any individual bank accounts. Up to now banks were excluded but now they are included. This is a protection measure for the consumer.
The amendment arises primarily as a result of the inclusion of banks for the first time under the Restrictive Practices Act, 1972, and the Consumer Information Act, 1978. The proposed amendment is a consumer protection measure and its objective is to ensure the continued confidentiality of a person's bank account. Thus, if, for example, the director is investigating a possible restrictive practice in relation to a particular bank, or in relation to banks generally, and if in the course of that investigation the director considers it necessary to examine individual bank accounts, he will not be entitled to do so unless he has first obtained a High Court order and then, only in accordance with the conditions laid down in the court order.
The provision will apply not only to banks but to all financial institutions within the meaning of the Central Bank Act, 1971.
Thus, besides licensed banks, other financial institutions such as building societies, post office savings banks and the Agricultural Credit Corporation will also be covered.
The amendment provision could arise also in the context of the director's or commission's investigations or inquiries into an ordinary business enterprise. For example, if such an enterprise was making claims in their advertising in relation to their turnover or end-of-year results, the director may consider it necessary, in addition to his general investigation into the matter, to examine the bank account of the company. At present, he would be permitted to do so under his general powers of investigation contained in section 16 of the Consumer Information Act. Similar powers are contained in section 15 of the Restrictive Practices Act, 1972. The proposed amendment would, however, modify those powers where the examination of individual bank accounts is concerned and the director would have to obtain a High Court order.
In relation to the Consumer Information Act, I am very concerned about, what are in my view, the sharp practices which are taking place in the area of life assurance policies and investment-insurance policies which are supposed to yield a certain rate. Jim Murray said he is very concerned about this. When the director is making inquiries he should ascertain the truth of certain advertisements. Would this measure impede such an investigation?
Insurance companies are already covered and this will not impede them in any way. I think the Deputy is talking about malpractice, putting out misleading advertisements about fantastic results to be got by taking out a certain policy, and where the hard sell is used to encourage people to take out insurance policies. From memory, and I am open to correction on this, this is covered in the insurance legislation which is before the Seanad at the moment.
Amendment agreed to.
First Schedule agreed to.
SECOND SCHEDULE.
I move amendment No. 13:
In page 19, Part I, third column, opposite "Postal Telecommunications Services Act, 1983", to delete "and 52 (1)" and substitute ", 52 (1) and 88".
This amendment is designed to remove the exemption of Telecom Éireann from consumer protection legislation. Section 88 of the Postal and Telecommunications Services Act, 1983, contains the following statement:
(1) Subject to subsection (3), the company shall be immune from all liability in respect of any loss or damage suffered by a person in the use of a service referred to in paragraph (a), (b) or (c) by reason of—
(a) failure or delay in providing, operating or maintaining a telecommunications service,
(b) failure, interruption, suspension or restriction of a telecommunications service,
(c) any error or omission in a directory published by the company or any telegrams or telex messages transmitted by the company.
Telecom Éireann, who claim to be operating in competition with other commercial operations, have quite neatly got this section in here and nobody can sue them for almost anything because they are immune. Like the king who was supposed to be immune, from prosecution in the past this royal prerogative now extends to Telecom Éireann, and it also, I imagine, applies to a number of other State companies.
This abuse was brought to my notice by a constituent whose business suffered substantially through the fault of Telecom Éireann. They failed to insert his telephone number in the form agreed in their directory. He pursued the matter with Telecom Éireann and they made him offers to remedy matters which he considered unsatisfactory. He consulted his solicitor to see if he could take the matter further and he collided with section 88 which told him: "Sorry, mate, you have no rights in this matter. We have them all." He even raised the matter with the office of the Ombudsman but, for obvious reasons, the results were not particularly satisfactory. Telecom Éireann were hiding behind section 88.
The purpose of my amendment is to remove that protection. This is only reasonable because Governments have prided themselves on the fact that bodies — such as Telecom Éireann and An Post are operating in the commercial area. In this case they have a chairman who is one of the great advocates of private enterprise. He believes in competitiveness and the refreshing breath of fresh air in respect of all aspects of commercial operations. I am sure he would have the same bracing attitude towards the operation of Telecom Éireann as he would to his own business. If that is the case, I do not believe he or his board should have the slightest objection to Telecom Éireann operating on the same basis as every other business in that they are liable to sue or be sued in respect of wrongs committed against them or by them. All this amendment would do is put them on the same basis as other commercial businesses. There is no need for this exemption.
I would point out in this Republican assembly that the exemption goes back to the old common lawprinciple that the king can do no wrong. If the king's horse ran you down on some medieval road you could not sue him, even though you could sue anybody else, because he was the king. In this modern era that throwback to regalism has little relevance to the operations of Telecom Éireann, that most modern and technically advanced of all our State companies. Surely we have no need to rely on this modernised version of the old maxim that the king can do no wrong? In this case, the king should be liable to sue and to be sued, the same as anybody else. I appeal to the Minister's interest in the consumer, as well as perhaps to his sense of doing away with some of the vestiges of imperialism, to accept my amendment. I am sorry that no other members of his party are here to have their cockles stirred by the prospect of removing yet another remnant of the oppressor from our law. I am sure it would be something that would have them granting press and radio interviews ad lib, not to speak of photographic sessions.
The Deputy seems to have been lost in royal Meath for a while.
I will come down to a more mundane level. There is no justification for this exemption. Telecom Éireann try to make settlements with people when they feel they have been genuinely injured but they do that out of grace and favour, not because of any statutory rights that exist against them. They should be subject to the law like everyone else so I hope the Minister will accept this amendment.
I agree generally with Deputy Bruton's remarks. We should not draw a comparison between a company such as Telecom Éireann, which was set up by legislation and a company which was set up on a commercial basis. If we were to find among the articles of association of a company such an exemption from liability it simply would not be allowed and I do not see why it should be allowed in relation to State companies, particularly those who engage in commercial business and who say, as Deputy Bruton said, that they are intent on competing on the same footing, providing the same kind of service and backup. I support the amendment.
Lest the ESB think they are the only organisation about which I have reservations I support this amendment. Not only is the legal immunity unfair, large semi-State organisations, because they are so big, are very powerful when it comes to litigation. They can afford the best solicitor and barrister and can face down in an intimidatory way, because of those resources, any humble consumer who might wish to take them to court. Even if you try to reverse the legal immunity which was wrongly given to them, they would still be in a very powerful position. It would be a very reluctant consumer who would charge into court to avail of any changes in the law.
We must remember that we are dealing with a monopoly and that you cannot get a telecommunications service other than from Telecom Éireann. Therefore, the public must have some rights. The important point is that it is up to the Members of this House to look after the public because we are the only people who speak for their rights. We have all seen the charade whereby Telecom Éireann said, following a complaint about an account, that their accounting system is in order but later admitted to the Ombudsman that a mistake had been made. Clearly, mistakes are made, not to speak of differences in quotations for installations. I am having difficulty in trying to get my telephone number included in the directory, they put my mother's number in instead——
The Deputy is lucky although his mother might not be so lucky.
I know that the Minister is a former Minister for Posts and Telegraphs and he, more than anyone else, knows the Achilles' heel in Telecom Éireann. In the interest of the public I ask him not to respond to this amendment by giving verbose technical reasons for not taking it on.
I will give practical reasons.
There are always technical reasons for not doing things. We need a will and an intent to ensure that Telecom Éireann are brought to heel in a public, accountable way.
I will not give Deputy Yates and others a verbose three pages of technical reasons for not accepting the amendment. As a former Minister for Communications, I have a deep appreciation of the problems they had to take on board as the system was on the point of collapse. They have come a long way but not as far as we would have liked. They are continually improving their accounting system and they are at the point of releasing a printout of telephone bills. I recognise that there are serious problems which will take some time to resolve but this matter was debated at Government level. That was the case when the previous Government were in office and we have not been able to transform Telecom Éireann in nine months. The previous Government agreed to give this immunity——
That was in 1983.
At any rate, Telecom Éireann have come a long way although they still have a distance to go. We have already had discussions with the Minister for Communications in this regard and he is not prepared to accede to it at this stage because there are problems and Telecom Éireann must be given the opportunity to modernise totally. When they are as sharp as we would like them to be I agree that the exemption should be taken away but now is not the time to do so.
We must also bear in mind that, under the International Telecommunications Convention, 1973, to which this State acceded, liability is not accepted towards users of international telecommunications services. In these circumstances, it would be inappropriate to remove this immunity from liability which applies to Telecom Éireann in regard to the provision of international telecommunications services. That is the basic position. It is not practical to change at this stage of development although I agree that it should not stay forever.
Will the Minister or the Minister for Communications put a time limit on Telecom's exemption from responsibility? We are talking about consumer protection legislation and if we are not for the consumer — but for Telecom — we are against the consumer. If there are acknowledged problems in Telecom Éireann which result in consumers having problems and suffering as a result, it is not good enough to say that they have come a long way, that they will go further in the future and that we will look at it some time. I acknowledge that some work has been done to bring Telecom up to date but there should be a definite time limit on the exemption they have.
I would like to hear the Minister's reply to that.
I may not be very long in this House but I cannot see why the Minister for Communications should have any part in this matter. It is a question of right and wrong. It is appalling that the Minister can say that, because the Minister for Communications said it is not yet time to do something, it is not going to be done. That is the worst form of special pleading in vested interests in Government that one could have.
It is the reality. If the Deputy wants me to talk nonsense I will talk nonsense.
It is all very well to say that is the reality. The reality is, as Deputy Colley has rightly said, that the superior interest of a State company is being put before the public interest. We are taking sides in this matter. The Minister for Communications should not have that arbitrary role in deciding on such matters. That is an even stronger case for the Minister to redouble his efforts in this area.
I cannot believe I am hearing what the Deputy is saying. He is a member of a party who granted this immunity when in Government. Now that there has been a change of Government they want the immunity removed. There are international obligations and we cannot throw those out the window, let Telecom pay all the bills and raise the telephone charges which would mean the consumer would have to pay more. Let us be realistic. I would like to see the exemption removed in the morning but I do not think Telecom are in a position to operate without the exemption. International obligations should not have to be changed. The Deputy's party when in Government made a decision and now they want the position changed overnight but I cannot do that. I am not the Minister for Communications. I am not passing the buck on to him. I have done as much as I can in relation to this matter. The Minister for Communications accepts the merit of what I am saying and of what this House is saying today. I will ask him how soon he thinks we could consider removing the exemption but I will not go into the realms of unreality and say anything more.
Can I ask the Minister to be a little more specific as to why Telecom Éireann cannot stand on their own feet in the same way as other small companies in regard to being liable to being pursued for damages for any breach of contract? What are the defects in the existing Telecom system that are so inherent that the Minister for Communications feels they are an impediment to allowing Telecom Éireann to be put on the same footing as everyone else? The Minister has simply spoken in very general terms and has not given the House any indication as to what exactly is preventing Telecom Éireann at the moment from undertaking normal legal obligations which he feels that at some unspecified time in the future they might be capable of undertaking.
In the not too recent past I ventured into the area of communications in response to an interview in RTE and for weeks later the same gentleman on the opposite bench tried to upcast that I wanted to be two or four Ministers at the one time.
He had a point.
I have no intention of getting into the technical details on which the Minister for Communications bases his assessment in relation to this matter. I have pressed the case for the consumer in this matter. I have no intention of getting involved in that area as I am not qualified to do so because it is five years since I was involved in that area. I cannot be any more helpful to the House than I have been on this aspect of the matter.
That is not a reasonable answer to the question I am putting. There is an amendment down to this Bill and it is in order. The Minister and the Minister for Communications have had more than ample notice of it, as it was first circulated about 14 days ago. If there are good reasons why Telecom Éireann cannot be subject to the law those reasons should not be kept secret. The Minister for Industry and Commerce who is relying on those reasons as a basis for rejecting this amendment should be able to say what they are. I do not believe he does not know the reasons. Neither do I believe that he could be accused — I doubt if he is very fearful of this — of treading into other people's territory by answering this simple question, because this is an amendment to a Bill for which he is responsible. It is an amendment that is in order and one that he has been called upon to reply to. The factors which he is adducing for rejecting it are not reasonable ones.
In assessing when it might be possible for this exemption to be removed it is important that we know the exact reasons for it. Is it that Telecom Éireann do not yet feel any sense of confidence in their telephone network and that there are going to be so many faults they are afraid they will be put out of business by all the legal actions that they will be prey to? I cannot understand, particularly in regard to the directories which they are producing, how there could be any need for them to be exempt because their production is not a highly technical process and they are not subject to gremlins getting into the electronics as far as the preparation of the directories is concerned. People have been producing directories of one kind or another for the last 200 years and there is nothing obscure or unusual about the technology involved. Therefore I do not see why if I produce a legal directory for reward, make a false statement in it and somebody acts on that statement and loses money, I am liable for it while at the same time Telecom Éireann who are producing a telephone directory are exempt from a similar pursuit for damages. That directory is produced for reward. It is not given as a gift from Telecom Éireann. Part of our telephone rental goes towards payment for it. As we all know we are now getting a less generous provision than in the past; we now get a directory only for the area in which we live and we have to buy the others if we want them whereas previously we used to get the directory for the entire country. There should be a legal obligation on Telecom Éireann to produce correct information in the directory and if it is not correct they should be liable to be pursued for damages in the same way as any other commercial operation would be liable to be so pursued.
The Minister has said in a sort of mysterious way that the Minister for Communications said that Telecom are not quite ready to face the bracing winds of normal legal liability. They need this antique protection of exemption from normal law to continue for some time more. We should be told the reason for this. What are the inherent problems in Telecom that require that they be exempt? It is not a mystery or a secret, particularly in view of the fact that the Minister said they will probably be able to be subject to this liability in a few years. If that is the case at least we know, in our search for the reasons, that they are circumstances that in the view of the Minister exist at this time but are diminishing in their importance and will not exist to the same extent in a few years time. What are the inherent problems in Telecom Éireann? What are the peculiar characteristics of Telecom Éireann? The House is entitled to this information. I would press the Minister to give us the information. I have no doubt that it is Telecom Éireann and not the Minister who feel they need this continued protection.
Deputy Bruton is now talking about the liability for omission in directories but that is different from what is contained in the amendment. If that is what the Deputy is saying I will pursue that item between now and Report Stage. If the Deputy is saying more than that, all I can say is that the reasons for continuing the immunity now are as valid as on the day when the Deputy's Government gave it to them and are as valid as on the day not so long ago when the Deputy sat down and drafted this Bill. I accept the validity of the arguments then and I am standing over them now. I am amazed that the Deputy would change his position so quickly from the time when he drafted this Bill. He knows as well as I what Telecom Éireann have to contend with. If the Deputy is simply talking about an omission in a directory I will pursue that between now and Report Stage.
Will the Minister outline the ways in which Telecom Éireann will not be accountable under this legislation? The areas referred to by all Opposition Deputies refer to matters such as the directory, accounts and quotations. None of those things have anything to do with the Minister's reply which had to do with international obligations. That makes our position a lot more reasonable. It was unfortunate that the Minister came along with the big leaf at this stage ——
You used it yourself for long enough. This is your Bill.
—— that just because Fine Gael did not do this it need not be done. However, Fine Gael are now putting forward the amendment.
Maybe the Labour fellows made you do it.
In the nature of things one daily grows in wisdom. I do not accept the Minister's reason as being genuine. In relation to the position of Telecom Éireann we all accept that the accelerated development programme and other aspects of bringing our telecommunications infrastructure up to date has led to changes relative to the Irish versus the European telecommunications system. That is why our rental costs are £33 per quarter which is 64 per cent above the European average. We accept that but what is not acceptable is that Telecom Éireann should hide behind the law. If the consumer has to pay a bit more because we need more development so be it, but Telecom Éireann should not be given the cloak of protection now being given. The Minister's response on the politics of it and in relation to international obligations does not answer the central points raised this evening. I would ask the Minister to give a commitment to go back to Government on this. I do not believe that the relevant section of the Department of Communications who have responsibility for Telecom Éireann should be judge and jury on this issue. It is a political decision and the Minister has a genuine input to make on that. Telecom Éireann should be treated in the same way as it is now proposed to treat the ESB.
I hope the Deputy is not suggesting that this Bill should be held up until I have had the opportunity to go to the Minister for Communications and back to Government.
I did not suggest that.
Let us be realistic. That is basically what the Deputy is saying. If what Deputy Bruton started off by saying, that there is an omission in the directory which caused a problem, we can get somewhere, but if the Deputies continue on the wider issue, I have made the arguments again and again. The arguments are as valid now as they were at the beginning. The Deputies understand that as well as I. If we lived in the ideal world we could do everything we wanted, but that is not the case. In relation to the ESB, they would be subject to section 39 of the Sale of Goods and Supply of Services Act. They will have to supply their services with a due scale of care and diligence.
Is the Minister saying——
I know what the Deputy is going to ask. The obvious question is why not bring An Bord Telecom into it, but I have already given the answer to that.
Is Telecom Éireann the only State company who have this sort of exemption?
An Post have it as well and I think CIE have it.
I will introduce amendments on Report Stage to remove the exemption from CIE, An Post and Telecom Éireann because it is not justifiable in any of these circumstances.
How did you justify it on the first day when the exemption was put in? Do not be a hypocrite.
That remark was unworthy of the Minister.
You are pursuing something that you well know is not practical at this stage. The Deputy drew up the Bill and knew that it was not practical then. He gave the immunity when he was in Government and if we had been in Government we would have given it. Be realistic and own up to the situation.
When the Minister has good arguments, he will make them, but when he has no arguments he refers to what did not happen when we were in Government——
I do not see what is wrong with that.
——and to all sorts of red herrings of that kind.
That is not a red herring. The Deputy drafted the Bill.
That is a fig leaf.
The Deputy drafted the Bill.
The Chair will intervene and take Deputy Ivan Yates at his word that there is continuing growth in wisdom. Let us indicate that in respect of the examination on Committee Stage we are coming to a point in wisdom where we can appreciate that it is not a gainful exercise to expect that at the moment we will have any change from that which has been indicated, and let us move on.
I am completely unconvinced by the Minister's failure to produce any evidence as to why Telecom Éireann should be exempted. The Minister gave a variety of reasons as to why he could not give the evidence but I am not convinced. I am somewhat heartened that the Minister has indicated a willingness to perhaps remove the exemption in respect of directory entries which would mean that my amendment could be amended to refer to section 88 (1) (c), but the difficulty with that is that paragraph (c) also contains a reference to telegrams and to telexes. I hope that the fact that telegrams and telexes are included in paragraph (c) would not prevent the Minister from accepting the amendment if it is made on the more limited lines I have suggested. I acknowledge that the Minister has been forthcoming on that. I will withdraw the amendment now but I will reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendment.
When is it proposed to take Report Stage?
Tuesday next, subject to the agreement of the Whips.
Report Stage ordered for Tuesday, 15 December 1987.