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Dáil Éireann debate -
Thursday, 6 Jun 1991

Vol. 409 No. 5

Liability for Defective Products Bill, 1991: Second Stage.

I move: "That the Bill be now read a Second Time."

I am very pleased to introduce this Bill, it is without question the most significant measure to emerge to date in the Community in the area of consumer protection. Equally, the changes in our national law will have important implications for the legal process as regards product liability. Thus the position of Irish consumers will be advanced in a very considerable way by providing additional legal redress to those already available under existing tort and contract law.

While the present measure is aimed primarily at improving the position of the consumer, it should not be construed as being either anti-enterprise or anti-business development. I would like to remind the House that the requirements of the directive already have to be met by Irish manufacturers in their principal EC markets. Deputies are aware that our manufacturing sector now sells about 70 per cent of its production in markets which are predominantly within the European Community. In 1990 our exports to other EC countries were valued at nearly £11 billion. Currently 2,500 manufacturing companies in Ireland — half the total — are now engaged in exporting.

The remaining 2,500 manufacturing companies continue to rely on the home market for the bulk of their business. Thus it will be in industry's interest that quality assurance and safety standards are maintained at the highest international levels. The message to industry is that quality production, a desirable end in itself, helps to guard against the risk of damage and liability, and consequently costly claims.

Any company operating to the highest quality standards in its management and production processes should have little to fear from the new legislation. The competitive challenges associated with the Single European Market make it imperative that Irish manufacturers employ strict quality control in the production of their goods. Furthermore, I believe that as many companies as possible should strive to achieve certification by the National Standards Authority of Ireland. The attainment of its quality standard is an invaluable tool in marketing Irish products overseas. At the end of February 1991, 182 Irish companies had been awarded ISO 9000 certificates. It is predicted that there will be 400 before the end of the year.

There has been widespread consultation with industry, as well as with consumer and trade interests, in the course of preparation of this legislation. Industry should now be very familiar with the aims and requirements of the EC Directive as a result of this and also through seminars arranged over an extended period. This Bill will give effect in Irish law to European Communities Directive 85/374/EEC on liability for defective products which was adopted on 25 July 1985. The directive is an integral part of the Community's policy of reducing distortions in trade between member states by the harmonisation of their laws in a wide range of areas.

The Bill will introduce into Irish law the remedy of damages, in respect of injury to a person or damage to his property, from faulty or defective products, based on the principle of strict or no-fault liability. This means that where damage is caused to a person or his property from the use of a defective product, the producer is liable irrespective of whether he is negligent in its manufacture or production.

The remedies available under this Bill are additional to those in existing tort and contract law. Liability in tort exists where, because of a defect in a product resulting from its faulty manufacture, damage is caused to a person or his property, but to succeed in such cases at present the plaintiff must prove negligence on the part of the manufacturer, supplier or dealer. For this reason many potential claims never get to court and the injured party does not even get a hearing.

The Sale of Goods and Supply of Services Act, 1980, incorporates two main implied conditions which are: (i) that the product or goods are of merchantable quality; and (ii) that they are reasonably fit for the purpose for which they are intended.

A consumer can take an action for damages against the supplier — generally the retailer — if the goods are not of the necessary quality and damage or loss ensues. Of course, if such an action is successful in recovering damages from the supplier, then that supplier can seek indemnity from the person who supplied him with the product or goods. Taken together, the expanded law of tort and contract law will offer the consumer a comprehensive and complementary set of measures providing wide ranging protection in the area of product liability.

The Bill follows quite closely the wording and the provisions of the directive. However in transposing the directive into national legislation member states are permitted to exercise a number of options. These are as follows: first, member states are allowed to include in the scope of implementing legislation primary agricultural products, including fish and game, which have not undergone initial processing; second, member states are allowed to exclude from the defences that are available to the producer the so-called "development risks" or "state of the art" defence and third, member states may put a limit on the total liability of a producer for damage resulting from a death or personal injury and caused by identical items with the same defect. In giving effect to the directive, the Government has decided not to avail of any of these options. I will explain the reasons for this approach presently.

The following is a description of the provisions of the Bill. The definitions of certain of the terms used in the Bill are contained in section 1. Many of the provisions of this section are self-explanatory but some warrant comment. Damage within the meaning of this Bill includes death or personal injury or loss of, damage to or destruction of property. Damage to the defective product itself and to property that is used other than for private consumption is excluded. An injured person is defined as one who has suffered the damage or his personal representative or dependants. Products covered by the Bill are all movables except primary agricultural products, which include fish products and game, except where these products have undergone processing of an industrial nature. Included are component parts of or raw material used in the manufacture of a finished product even though that final product may be an immovable. An example of this would be building materials used in the construction of a house, which is immovable.

Primary agricultural products have been excluded from the legislation because they can be particularly prone to hidden defects caused by environmental factors beyond the control of the producer. These products, however, will still be covered under fault-based tort and contract law. Where they are processed, the responsibility will reside with the processor, who will be considered as the producer under the terms of this Bill. It is his responsibility to detect defects and failure to eliminate them could expose him to risk. It is interesting to note that all member states, with the exception of Luxembourg, which have implemented this directive have excluded primary agricultural products from the scope of their implementing legislation; for us to do otherwise would be to unfairly disadvantage our own farm sector particularly with regard to insurance costs.

Section 2 contains the principal provision of the Bill, imposing liability for damages in tort on the producer for damage caused wholly or partly by a defect in his product. A producer is defined in considerable detail and may be (a) the manufacturer of a finished product, (b) the manufacturer of a component or of a raw material used in a finished product, (c) in the case of processed agricultural products, including fish and game, the processor thereof, (d) any person who, by using his name in connection with a product, represents himself as the producer of that product, (e) any person who imports a product into the European Community for business purposes, or (f) in the unlikely event that none of the above mentioned can be identified, any other person in the chain of supply.

I am confident that this section provides adequate scope for the identification of a liable producer where a defective product has caused damage. Where a defective product is imported into this country from outside the European Community, the importer will be held liable. A very important safeguard from the point of view of the consumer is that where he has difficulty in identifying the producer and where, simultaneously, the supplier of the defective product fails to identify the manufacturer or his supplier, then that supplier can be held liable. In my view this represents a powerful incentive to Irish importers, wholesalers and retailers to refrain from dealing in faulty goods, particularly those originating outside the EC.

In order to discourage the possibility of an excessive number of cases entailing very small claims, section 3, in accordance with the provisions of the directive, provides that damages not exceeding £350 claimed in respect of property are excluded from the provisions of the Bill, but this restriction relates only to damage to property. Where damages are awarded, only that amount in excess of £350 can be recovered. To enable this figure to be updated without the necessity for primary legislation, the Bill will empower me to vary this amount by making an order under this section. Such an order might be necessary, for example, if the EC Commission decided to revise this minimum amount or a significant movement of exchange rates over a period warranted an adjustment.

The directive allows members states to provide for a limit on the total liability of a producer resulting from a death or injury caused by identical items with the same defect. Where a member state decides to avail of this option, the limit cannot be less than 70 million ECUs — approximately £53 million. This Bill does not include such a limit. It is considered that the minimum financial limit is pitched at such a high level that there would be no material difference from that of a system of unlimited liability.

Section 4 concerns the burden of proof on the injured person. I indicated in my introduction that in actions under the existing law of tort, the injured person is required to prove negligence on the part of the producer; in actions brought under this legislation the injured person must prove only the damage suffered, the defect in the product and that the defect caused the damage.

Section 5 provides the criteria for determining the defectiveness of a product. Under this Bill, a product is defective if it does not provide the safety which a person is entitled to expect taking all circumstances into account. This criterion must, for example, take into account the way the product was used — some products are capable of being used for a purpose for which they are clearly not intended. In such cases a product may well not be considered to be defective. Additionally a product cannot be regarded as defective solely because a better product has subsequently been put into circulation.

I have already mentioned that the Bill makes available to producers a number of defences. These are contained in section 6. A producer will not be liable if he can prove any of the following: that he did not put the product into circulation, that the defect probably did not exist at the time the product was put into circulation by him or that the defect arose afterwards, that the product was not produced for an economic purpose or in the course of business, that the defect was as a direct result of compliance with any legal requirement of national or European Communities law, that in the case of a defect in the raw material or component part the defect was due to the design of the finished product or the instructions given by its manufacturer, or that when the product was put into circulation the state of scientific or technical knowledge was not such as to enable the existence of the defect to be discovered; this is commonly known as the "development risks" or "state of the art" defence.

As I have mentioned, the directive does provide for the exclusion of the "development risks" or "state of the art" defence. This option has not been exercised in the Bill. The Government are of the view that this defence should be allowed as the cost of insuring against this risk could be extremely high and the effect could well be to stifle innovation in some of our most progressive industries. When development risk is a factor in causing damage, however, a cause of action for liability based on fault may exist.

There are two very important time limits specified in section 7 of the Bill. First, it stipulates that an action for recovery of damages can be brought within three years of discovery of the damage rather than the date of sustaining such damage. Second, right of action will expire after a period of ten years from the date on which the actual product which caused the defect was put into circulation by the producer. If, however, judicial proceedings are pending at the end of this period, liability does not expire but runs until a final decision is made. If the damage is discovered during the ten-year limitation period but proceedings are not initiated before this period expires, an injured person will have no right of action subsequently. I am empowered to make an order under this section in respect of the application of the Statute of Limitations, 1957, to proceedings initiated under this Bill. The purpose of this is to ensure consistency with the limitation of actions provisions of the Bill amending the Statute of Limitations which is currently before the Seanad.

Section 8 provides that joint and several liability will apply where two or more persons are liable for the same damage. In such circumstances an action for damages may be brought against each and every liable person. This provision is in line with the Civil Liability Act, 1961. It enhances the prospect of the injured person securing full recompense.

It is reasonable that if the injured person is responsible to any degree for the damage the producer should not be liable for all the damages. Section 9 provides that where any damage is in part due to the fault of the injured person, or to the fault of any person for whom the injured person is responsible, the producer will be enabled to reduce his liability under the rules of contributory negligence as provided for in the Civil Liability Act, 1961. These rules, however, will not apply where the damage is as a result both of a defect in a product and the act or omission of a third party.

An important practical measure of protection for the consumer is provided for in section 10. This section prohibits the limitation or exclusion by the producer of his liability contractually or by any notice or by any other provision. If a producer does attempt by, for instance, the inclusion of a clause in a contract to limit or exclude his liability in this way, such clause will have no legal effect.

Section 11 provides that any existing rights of an injured person are not affected by these provisions. Rights under contract law or in tort, therefore, are unaffected. Indeed, there may be instances where an injured party would wish to avail of either of these avenues of redress rather than that being introduced by this Bill. These new provisions will, therefore, complement existing domestic law in the area of product liability.

Section 12 provides that section 1 of the Courts Act, 1988, which relates to the abolition of juries in certain actions in the High Court shall apply to an action for damages for personal injuries taken under this Bill.

Section 13 provides that this Bill shall not apply to any products put into circulation within the territory of any member state before the commencement of this Bill. Section 14 provides for the bringing into effect of this Bill. I intend to introduce these measures immediately this Bill is passed.

These are the provisions of this Bill. I am confident that it will improve considerably the position of persons injured by defective products. I also believe that whatever burden this imposes on producers is balanced to a reasonable degree by the defences available and by some other provisions of the Bill. I am sure that the Bill will, accordingly, be welcomed by Deputies on all sides.

I commend the Bill to the House.

I also support the principle of the Bill. As the Minister has pointed out, the Bill runs very close to the 1985 EC Directive. I want to know why it has taken so long for the Minister to introduce this important measure. Ireland is well behind most of its European partners in the implementation of the Directive. It has come to my notice that businesses have been gearing up for the legislation for a considerable time, even without the implementation of the Directive. That shows how progressive and modern in outlook our businesses have become and the way they look ahead to the European marketplace and the measures they will require to comply with the Single Market from 1992. They have shown innovation and forethought in implementing and complying with the various directives much earlier than even the Government. I am curious to know why the legislation has taken so long to come before us because the Minister's speech put strong emphasis on quality and standards. A great onus is now put on businesses and manufacturers to emphasise quality and higher standards if they are to meet the requirements of the Directive and to complete in the marketplace.

The consumer is very discerning, and the consumer should be made aware of the legislation. I regret that the Minister for Industry and Commerce does not seek to enforce adequately much of the consumer-related legislation put through the House or provide information that would help consumers bring genuine cases under the legislation.

I am very concerned about the cost of enforcement of the Bill, as I am, indeed, with regard to other legislation. The Minister said that certain exclusions have been made to prevent frivolous claims. This country needs a small claims board to deal with small claims that could be brought under the legislation but which might be prohibitive for the consumer because of the costs involved. The best example of that is to remember that the Director of Consumer Affairs and Fair Trade is inundated with calls — up to 20,000 annually — expressing concern about the 1980 Sale of Goods and Supply of Services Act. Many consumers with complaints do not find their way to court because of the expense involved. That is anti-consumer and it is not something that we, as a nation, should tolerate. The Minister for Industry and Commerce does not address that issue in this Bill.

I find it difficult to understand a few sections in the Bill and the reasons for making certain exemptions. The Minister went to great lengths to list the various options he had before enshrining the Bill, but I still want to know why agricultural production is exempt. I am at a loss to understand how a Government that talk about quality and high standards, find that food production and food processing should be exempt from the Bill. Food safety is becoming such a key issue in the sale of our exports that I find it difficult to comprehend why the Government feel that no legislation is required in that regard. Perhaps the Minister will take an opportunity to explain why that area is not included in the Bill. I would be pleased to hear why agricultural production itself is so prohibitive in terms of insurance costs, as mentioned in the Bill, and why primary production has not been implemented by other European countries, with the exception of Luxembourg. I would be grateful for a more detailed explanation of that matter.

The Bill deals with manufacturing and processing but various services have been made exempt. Why were they not included in the Bill? Is another directive imminent to include consumer services under liability? The Minister mentioned that consumers might have some difficulty in tracing the manufacturers of products particularly products from mainland Europe. He indicated that where the manufacturer of a product imported from the EC cannot be traced, the supplier will be liable under the directive. It is welcome that somebody can be held liable from the point of view of the consumer. Is that a correct interpretation of the position?

No, but I will clarify the position in my reply.

I am concerned at the cost of enforcing EC Directives. The consumer must have greater access to justice and that is why I advocate the setting up of a small claims court. It would be ridiculous to provide legislation so that consumers can take a case in respect of defective products, if the cost of doing so would be prohibitive. Greater access to justice is essential if the provisions of this Bill are to be implemented. Other Acts are not being enforced because of the cost involved.

We must achieve a balance between frivolous claims which may cause damage to businesses and well-founded claims. The Minister in his speech pointed to this problem. There is a danger that people with the financial means will bring frivolous claims which will damage businesses.

The Minister referred to development risks and to the fact that people testing a new product might run into difficulties with discerning consumers in relation to defective products. This is an important issue. It will be difficult to get the balance right in relation to people establishing new businesses if at the beginning they do not have the appropriate manufacturing techniques or the correct inputs into the manufactured product and when established produce a fine product, having tested the market and experimented over a period. Following the passage of this legislation there will be more emphasis on feasibility studies and on research and development. It will take longer for a product to come on the market because of the risks for a company who could be put out of business under this directive if they do not get the balance correct in manufacturing. Exempting the first £350 of claims from the consumer's point of view will be of assistance in developing new products. That will not create any great difficulties in relation to new products on the market.

I am concerned about the cost of product liability insurance. Our insurance cover is the most expensive in Europe. I am concerned that product liability insurance costs do not damage our export potential. Businesses have difficulties in getting product liability insurance at a competitive rate. Those involved in engineering, construction and in perishable goods have great difficulty in getting a quotation. Because of our peripheral location and our need to transport products as cheaply as possible to the mainland of Europe, we should ensure that nothing in this directive inhibits businesses from getting the least expensive product liability insurance. Will the Minister comment on the problems that may arise in relation to product liability insurance due to the implementation of this directive?

Section 5 gives a very loose interpretation of the matters inherent in the definition of a defective product. A court may have a hard time defining a defective product. The definition should be tightened up to ensure that consumers do not make frivolous claims under this Bill.

Under section 6 producers will be exonerated from liability on certain specified grounds. The words "deliberate intent" on the part of the producer should be included in this section. A producer does not want to manufacture a defective product because his livelihood depends on ensuring that the highest standards are maintained. We should look at the possibility of including words that would indicate fraudulent or deliberate intent on the part of the producer. A manufacturer should not be forced into court without a clear indication of a deliberate attempt to produce a defective product, or an indication that his manufacturing processes were deliberately not up to scratch.

The Minister said he had consulted widely throughout industry on this Bill. This could not be further from the truth. I am appalled at the general lack of consultation by the Government in relation to consumer legislation. The Competition Bill is another example of the House being asked to rush through legislation in a matter of a couple of weeks without knowledge of the report of the Fair Trade Commission and without having had the opportunity to fully discuss the issues with the various interested parties.

The Director of Consumer Affairs and Fair Trade and the Fair Trade Commissioner have not had any consultation in regard to this directive or the Competition Bill. That is very disturbing and shows that the Government have difficulty in ensuring enforcement of the legislation. While we are very happy to pass legislation in this House, we seem to have difficulties about the compliance costs and the enforcement procedures necessary to ensure that consumers are aware of their rights and have the opportunity in a less expensive way in a small claims court to bring cases in relation to this legislation.

The first person to consult if one were pro-consumer in relation to this legislation is a person who has experience of dealing with consumers and various aspects of legislation in relation to consumers, the Director of Consumer Affairs and Fair Trade. The Minister's attitude is not helpful and I hope it is not one which will prevail in relation to further directives brought before this House in future.

I support the principle of the legislation. As I said, the business world have already geared themselves for the implementation of this directive. The Government have been one of the last members of the European Community to implement this legislation. It is a welcome development that the onus in civil law is on the producer to show that the product is up to the highest quality and standard of production.

Where has this Bill been all these years? The EC issued the directive for this measure in 1985 and we are only introducing it now. Indeed, if the EC had not issued a directive to bring in this reforming measure we would not be debating it this morning. We are doing it, not because we want to do it, not because the Minister or the Government believe in it, but because we have been ordered by Europe to introduce it. It is a poor reflection on us all that most of the reforming legislation we seem to be introducing is not from our own resources but because the EC has issued directives compelling us to do it.

Deputy Barry, other Members and I spent all day yesterday talking about the Competition Bill, in particular about Articles 85 and 86 of the Treaty of Rome. We introduced the Competition Bill because we were directed to do so by the EC Commission. It is not as if we did not have our own resources to enable us to bring in reforming legislation. We spend quite a lot of our resources on the Law Reform Commission, which over the years has done excellent work in preparing many worthwhile reports, the overwhelming majority of which are shelved and never see the light of day. Working in the Law Reform Commission must be one of the most frustrating jobs anyone ever had, even more frustrating than the job of a politician on occasions. They put in tremendous work, which is clear from the many reports they introduced over the years which they know in their hearts the Government will not bother about. That is a great pity because much of our legislation is in urgent need of reform.

We are here today because of the EC directive; nonetheless it is welcome as improving the position of the consumer. The net effect of the Bill is to render the manufacturer of a product liable under law for any damage or loss arising from a defect in his product, whether or not the defect arises from negligence on the part of the producer. The delay in bringing in this Bill has been a very serious matter for a group of people who have suffered grievously and continue to suffer. I refer to unfortunate haemophiliacs who developed AIDS as a result of having been injected with infected blood plasma. I should declare my interest by saying that I act as solicitor for many of those unfortunate people, some of whom have already died while others are in a very serious condition with a very low life expectancy.

There are approximately 73 haemophiliacs in Ireland facing the possibility of long, difficult and expensive legal proceedings to try to secure a just settlement of their claim for compensation. The main reason that those proceedings will be complex — if they go ahead — is that their case will rest on the old law before the introduction of the Bill which means that the onus of proof is on the haemophiliacs to try to establish that there was negligence on the part of those agencies who supplied them with the contaminated blood products. The fact that the blood which gave them AIDS was contaminated is not in contention but the argument has always been that the suppliers cannot be seen as negligent because so little was known about AIDS. While this is a highly debatable argument it is clear that if haemophiliacs were in a position to pursue damages under this legislation they would not have to establish anything more than that the blood was contaminated and, therefore, a defective product. The delay in bringing in this Bill represents a potentially very serious matter for that unfortunate group of people. Do we not have a responsibility in this House to haemophiliacs suffering from AIDS through no fault of theirs but as a result of a medical product injected by way of treatment? Do the Minister and the Government have a responsibility to deal with their position in this legislation? We could do that by introducing a retrospective element to this legislation. Would it be all that unreasonable to say that the benefits of this legislation should be antedated to 25 July 1981, the date when the directive was adopted by the EC? That would be humane and reasonable. I ask the Minister to agree to do that and to seek Government approval for retrospection.

The Government, through the agency of the Minister for Health, are very much involved in this issue, because the Minister may have a potential liability in that regard. Nonetheless, it is a problem that has arisen, not alone in Ireland but all round the world, and different Governments have reacted to the very real human problem it presents in different ways.

You will recall, a Cheann Comhairle, that quite recently in the United Kingdom, for example, the Prime Minister, Mr. John Major, ensured that a sum of £10 million would be made available to settle the claims made by haemophiliacs. It was suggested to the Minister for Health that he should adopt a similar pro rata approach, but I am sorry to say that this was fobbed off and long fingered with the excuse that other people, hospitals or the Blood Transfusion Board might be held liable. No realistic response has been forthcoming from the Minister to the haemophiliacs and their families — some of whom have been bereaved — who find themselves in a tragic situation. Why should our response be any less humane than the response of Mr. John Major in the United Kingdom and the response given in various other countries?

If the Government had implemented this legislation in 1985, as they had been directed to do, and had met their obligations under EC law to which they pay great attention or lip-service as the case may be, then the haemophiliacs would find themselves in a different position and their claim for damages would have been made on a different basis. It must be very hard for them and their families to see this legislation being introduced in 1991, given that the Government were directed to introduce it in 1985, knowing what the effect of that delay may be for themselves and their families. They have been shabbily treated by the Department of Health. They have been misled and mistreated in attempting to secure a fair settlement. I put it to the Minister that the spirit of the Bill is being dishonoured by the Government even before it becomes law.

The previous speaker made reference to the glib and easy practice which we seem to have adopted in this House of bringing in legislation to confer additional rights on people who do not have the capacity to exercise those rights. The legal aid service is a disgrace and it is so underfunded as to be laughable. What benefit is to be gained in conferring new rights on people who cannot afford to retain lawyers or call in the expertise required to exercise these new rights? One without the other is useless. I suggest to the Minister that we may as well not bother conferring new rights on people unless at the same time we provide them with the means to exercise those rights. We also spoke about this matter yesterday on the Competition Bill, which confers new rights on people in respect of anti-competitive practices. People were told that new rights were being conferred on them and that they would be allowed seek injunctions in the High Court, but how many people will find themselves in a position to do this?

It is all very fine to confer new rights in the Liability for Defective Products Bill and in the Competition Bill, but we have to go further and provide the means to allow ordinary people who cannot afford to avail of the services of expert lawyers to exercise these rights.

It would be nice to hear the Minister say today that he recognises this fact and that he is going to do something about the free legal aid service. That was promised a long time ago. The House will recall that during the course of the debate on Committee Stage of the Judicial Separation and Family Law Reform Bill, which introduced remarkable reforms in the area of family law, I suggested to Deputy Collins, then Minister for Justice, that it was all very fine to give new rights to spouses in an effort to give them some hope that their family affairs would be put in order and asked if he was going to do something about the free legal aid service. He replied — he repeated this later on television — that he recognised there was an urgent need to do something and said that he was going to make a special attempt in Cabinet to secure improvements, but nothing has happened. Indeed, the position has got worse. One cannot get an appointment with the community law officers, who are doing magnificent work. It is beyond belief that they are coping, given the resources available to them.

This is an uncaring Government. They seem to have the idea that it is sufficient to bring in judicial separation legislation, a Competition Bill and a Liability for Defective Products Bill to confirm new rights and that they do not have to do anything more, but it is not a bit like that. The old adage of justice being open to everybody, like the Ritz Hotel, is as true today as when it was first said. People are not in a position to call in expertise to exercise the new rights being given to them in this legislation. We may as well not bother if we are not going to do something about the legal aid service.

I would like to raise a number of other matters, but they are more appropriate to the Committee Stage debate. I am greatly concerned about haemophiliacs and I would like to know if the Minister is going to do anything to help them, having regard to the fact that if this legislation had been implemented on time it would have made all the difference to them. The Minister stated in his contribution: "for this reason many potential claims never get to court and the injured party does not even get a hearing". The people the Minister is referring to are the haemophiliacs. I am not saying that they will not be successful under the existing law; they might, but the difficulties facing them are immense. The cost involved is also immense. They needed this Bill in 1985 and it would have made all the difference even in 1986 or 1987. Do they not have a grievance when they see a measure which the Government were ordered to implement in 1985 only being introduced in 1991? This is to the detriment of the weakest, sickest, most ill and most vulnerable section of the community. They find themselves in a desperate position because of the delay in introducing this important legislation. The Minister will perform a very signal service in the interests of fairness, justice and humanity if he agrees to accept the amendment that I will propose on Committee Stage which would result in the Bill being applied retrospectively to enable haemophiliacs to avail of its benefits as though it had been adopted in 1985.

First, I compliment the Minister for bringing this important legislation before the House. It is very comprehensive and will affect consumers, retailers and manufacturers. It will introduce the principle of no fault liability into Irish law and will impose liability on the producer of a defective product or component irrespective of whether any negligence was entailed in the manufacture of that product or component. This principle is different from fault liability where the negligence of the producer of the defective product must be proven. Therefore, the Bill will supplement the existing law and marks an important innovation in this area.

Contract law, in particular section 14 of the Sale of Goods and Supply of Services Act, 1980, provides that the goods must be of merchantable quality and reasonably fit for the purpose for which they are intended. The EC Directive 85/374 allows member states a few options: first, member states are allowed to include in the scope of national legislation primary agricultural products and game. The Bill before the House today does not avail of this option and therefore the legislation will not apply to such products. Second, member states may exclude from the defences which are allowed to the producer the so-called state of the art defence, that is, the producer would not be liable for damages if he or she could prove that the state of scientific and technical knowledge at the time the product was put into circulation was not such to enable the existence of the defect to be discovered. The Bill does not avail of this option either and therefore that defence is available to the producers.

Product liability requires legislative protection for the consumer. Equally, it involves an attitude of mind by companies which goes far beyond the legal requirements and sees the need to produce quality, defect free products as a fundamental part of what successful business is all about. The issue of product liability is extremely important in itself, but it must be seen in the wider context where a whole new range of responsibilities and requirements must be addressed following the completion of the Single Market. Irish companies in the post-1992 Single Market will find, as indeed they are finding at present, accelerating competition in the market place. The Single Market provides vast opportunities for Irish companies, but we must not forget that there are also vast opportunities for the companies within the other member states. In order to survive Irish firms must adopt the characteristics of world class manufacturing companies. This means a total focus on the customer, identifying the customers' needs and developing products and services to fulfil those needs. That is what it is all about. Of course, most of the successful Irish companies are customer oriented and this is reflected in particular in their commitment to quality, for which the Irish product is well known worldwide.

Irish companies have also developed a keen sense of customer service and a greater awareness of the need to invest in marketing and research. But every Irish company must seek to reach the highest standards of quality if we expect to win business in a marketplace that is becoming more and more competitive everyday. Agencies like the Irish Goods Council will tell you that these standards will have to be the norm and not the exception. Irish firms face enormous challenges but will have enormous opportunities in the Single Market. In just one part of that market, Ireland, the new scope of Irish industry is estimated to be worth over £1.2 billion a year. To get their business the customer must be the beginning and end of the company's entire operation.

Some have argued that product liability might result in insurance companies increasing their standard rates of product liability cover. In my view this argument cannot be justified. Similar legislation has been introduced in other European countries and the net result of this legislation has been to enhance the quality of the product. In this situation I cannot see that striving for better quality should increase insurance liability or insurance premia. Therefore, I call on the Minister here today to make sure that the legislation is tight enough to ensure that we will not see an increase in insurance premia. We all remember the commitments that the insurance industry gave to every individual Member of this House when we were told that if we abolished the jury system we would see at least a stability in the cost of insurance and a better deal for young drivers. What has happened? We have seen an escalation of premia and it is even more difficult for young drivers to get insurance at a reasonable cost today.

The Bill also represents a major step forward in clearly defining the rights of the retailer and the consumer. Many of us have had the experience of purchasing a faulty product and, despite the best efforts of the retailer to seek compensation, either he or the consumer is left with the inferior article. In such a situation both the consumer and the retailer are left at the mercy of agents, distributors and importers. It is not that retailers and consumers have no rights in this area, but the fact is that until now they had been covered only in very scattered legislation. Some of it is very old and dates back over 50 years. This Bill builds on the Sale of Goods and Supply of Services Act and brings together in a clear, concise and simple way the rights of consumers and indeed of retailers.

The importation of goods from outside the European Community is quite considerable. These include goods from low cost countries in the Far East where it can be difficult to identify the manufacturer and it is even more difficult to make them liable for defective products. Therefore, I particularly welcome the provision in the Bill which makes the importer of the goods into the member state liable for damage caused as defined in the Bill. This should ensure that in future importers will have to pay a great deal of attention to the quality of the products they are importing, and indeed the safety standards of the product, because they will be liable for damage caused by that product.

As I have said, this Bill is a major event and therefore I am glad to note that the Minister in his wisdom has had various seminars organised throughout the country to brief the industry on the implications and advantages of this Bill. I compliment the Minister on his foresight in organising these seminars. They are of tremendous benefit to those in industry, who will be well aware now of the implications of this legislation.

The Bill before the House is a major advance in co-ordinating consumer legislation. Having said that, if it is found that we need to achieve further Community harmonisation, I would urge the Government strongly to pursue such a course at the Council of Ministers. This Bill has implications for manufacturers, retailers and consumers. It is a major piece of legislation. It will encourage manufacturers to provide quality products. For consumers it will define their rights and for retailers it will clarify the legal position.

The clear message to the insurance industry from retailers, consumers, manufacturers and the Government is that we will not tolerate an increase in premia following the passage of this legislation. Similar legislation has been implemented in other European countries where there has been no increase in premia. We cannot have a repeat of the situation where the insurance industry told both Houses that if we abolished juries we would see at least a stabilisation of insurance premia.

On that note of caution I commend this Bill to the House.

I welcome this Bill which gives effect in our legislation to a 1985 EC Directive. It is another measure which aims to bring Irish law in this area into line with European legislation and administrative provisions. The main effect of the Bill will be to remove the onus of proof of negligence from the consumer and the plaintiff and require only proof that damage was caused by a faulty product. Most of us recognised the desirability of this sometime ago and there must be some criticism of ourselves in that we did not take action earlier on our own account.

That negligence must no longer be proved puts a very desirable form of pressure on manufacturers of movable goods to ensure that their products are up to standard and are of such quality that they will not attract claims. The Bill will demand a high degree of vigilance on the part of the manufacturer. This is to be welcomed. Low standards should not be accepted anywhere. One of the complaints I have voiced over the years is that Irish people are much too slow to complain whether in restaurants or in respect of the purchase of goods with which we find fault. This unwillingness to complain has been a contributory factor in some areas where standards have not improved. In America there is pride in the level of service offered. People consider the quality of service they give to be an important part of the quality of life they lead.

It sometimes appears that when a complaint is taken to the manufacturer of a faulty product it is resented and it is made extremely difficult for the complainant to get satisfaction. It should be the norm that if a customer finds fault with a product the manufacturer and retailer will do everything to ensure that the complaint is met fairly and the inconvenience and damage to reputation put right as soon as possible. In more serious cases, of course, there may be resort to the courts for damages. I am not referring to the frivolous and spurious claims which are all too common in the courts at present. Every manufacturer and commercial undertaking should be conscious of the quality of their products and should likewise to be concerned to satisfy the customer. The consumer is entitled to know that the highest possible standards are being upheld.

In one part of this Bill the Minister has demonstrated a great degree of shortsightedness. There is also a degree of conflict between the directive and the Bill. The EC Directive as cited in the Bill states:

Whereas liability without fault should apply only to movables which have been industrially produced; whereas, as a result, it is appropriate to exclude liability for agricultural products and game, except where they have undergone a processing of an industrial nature which could cause a defect in these products;

The Minister in his speech stated:

Primary agriculture products have been excluded from the legislation because they can be particularly prone to hidden defects caused by environmental factors beyond the control of the producer. These products however will still be covered under fault-based tort and contract law.

The Minister has gone further by including fish products, which are not included in the directive. I do not know why he felt it necessary to go beyond the products listed in the directive. Perhaps he will explain. Section 2 (2) (c) states:

In the case of the products of the soil, of stock-farming and of fisheries and game....

I refer the Deputy to Article 2 of the directive.

I gather then it is included in the directive. I cannot understand why any of them is included. The Minister justified it in his speech when he stated:

It is interesting to note that all members states, with the exception of Luxembourg, which have implemented this directive have excluded primary agricultural products from the scope of their implementing legislation; for us to do otherwise would be to unfairly disadvantage our own farm sector particularly with regard to insurance costs.

I do not accept that statement. We, more than any other country in Europe, depend on the export of agricultural and fish products to mainland Europe. It would be a mistake, therefore, for us to give a signal that there is some doubt about their quality, particularly when there is some shadow over agri-business at the moment. It is significant that Luxembourg, another small country that is quality conscious and trying to export agricultural products to the rest of Europe, deliberately included agricultural products and made them liable to the same controls as normal manufactured or movable goods. We have had some difficulty in establishing markets in Europe. This would be an ideal opportunity for the Minister to make a major speech outside this House saying even though we are entitled to exclude our agricultural products that because we have faith in their quality, at all stages from the land to the supermarket shelf, we are underlining that by saying that these products will come within the scope of this legislation. It would have been a major step for the Minister to take to show that we have that confidence.

I want to repeat some of the points I made last night on the other Bill. If we are to bring the numbers of unemployed down to a manageable level it is important that we export goods. It is extremely important also that those goods be of the highest quality. There must be an acceptance by customers in mainland Europe of all the quality goods we produce, whether they are floppy discs or tinned salmon. Whatever we produce here must bear the hallmark of quality. That is the only way we can overcome the disadvantage of transport costs. That must be backed by after sales service. I would like to interpret this Bill as being a contribution towards that. Our exports must also be backed by intensive professional marketing and extensive advertising campaigns. They are the components that must be present if we are to win a market share in Europe. It is not impossible. There are plenty of examples. I know there is concern at the tendency of major conglomerates to promote a brand image for one product and squeeze all other products off the market. However, there is a market there at the top end in every country in the world for extremely high quality products at premium prices provided the country promoting them, the industry promoting them and the firms producing them, can stand over that quality, that they are backed up by an impeccable after sales service, that they are properly marketed and packaged and that an advertising campaign to draw consumers' attention to them is present as well. If those four components are there then a share in the top end of the market can be won for any Irish product, but not if any one of those four components is missing.

Excluding agriculture and fish products from this Bill is a serious mistake. It will not enhance the reputation of Irish products and will not send the right signal to Europe. I do not want to exaggerate the problem by suggesting that people will say that since we did not include these products something must be wrong. As the Minister has said, only one country, Luxembourg, has not excluded them. It would seem the reverse is true: that by not excluding them we will be driving home the message that we will settle for nothing less than the very top standards for every product we produce. I do not accept the Minister's argument that environmental damage is beyond the control of the producers. That is true, but it is true of other products as well. However, such products are not nearly as important to this country as agricultural products. Given that we have a good clean food sector, I cannot understand why the Minister has decided to give this derogation to agricultural products. Most of our farmers and fishermen have nothing at all to hide and would welcome the opportunity to demonstrate that Irish agriculture normally operates to the very highest standards. Also it is to the benefit of all producers and manufacturers when clear standards and guidelines are laid down. They know it is good for business. Consumers are also conscious of the need for legislation in this area. The Bill is quite well balanced and facilitates the protection of consumers while not providing a too rigid framework for producers and manufacturers to operate within.

Section 7 provides a number of defences for the manufacturer. It is very important that legislation in this area reflects and achieves the purpose for which it is intended and the Bill before us seems to comply with that.

The point made by Deputy Taylor is an interesting one which the Minister should look at before Committee Stage. He will obviously have to have consultations with the Minister for Health and the Minister for Finance. I think if the Department of Finance comes into it we will not see the amendment that Deputy Taylor wants being accepted by the Government. The haemophiliacs are a very small body of people who, through absolutely no fault of their own and because of the complexity of the law, have not been able to get compensation for what was an extremely serious and traumatic experience. Some have already died and many of the remainder have a very short life expectancy. If this Bill could be amended to facilitate their case coming before the courts then there would be widespread appreciation, not just in this House but in the community, of the Government's contribution towards redressing the wrong which these haemophiliacs have suffered over the past seven or eight years.

Deputy Dick Roche——

Could I point out that I am offering as spokesperson for The Workers' Party for the second time?

Deputy McCartan, I appreciate your position but, unfortunately, precedent has been that ordinarily following the Minister the Chair will call on the spokespersons of the main political parties — Fine Gael, Labour and The Workers' Party. However, where it is not possible for the Chair to do that, the order then reverts to the normal order of going from Government side to Opposition side. I would be happy in the circumstances to call Deputy McCartan following Deputy Roche.

That is certainly helpful. I would like to point out that I have been here since the beginning of the debate but had, for urgent reasons, to leave temporarily.

I appreciate that, Deputy McCartan, but on the other hand I hope Deputy McCartan will appreciate the position of the Chair. If you had been here at the time there would have been no problem.

I, too, appreciate the position Deputy McCartan finds himself in. I realise he was here at the outset and I will keep my comments relatively brief in order that he can get in at an early stage.

I welcome this Bill for three basic reasons. First, as has been commented on by the last speaker, Ireland has developed over the last 25 or 30 years as a consumer society, but we have never developed the consciousness of consumer rights that exists elsewhere. This Bill will help to awaken such consciousness. I do not believe for a moment that it is possible to create a consciousness by law, but I do think the Bill will be helpful in that it will again help to emphasise that consumers in our society have some rights. Let us hope it will encourage consumers to exercise those rights. Deputy Barry made the very valid point that we do not complain enough. We complain a good deal about public services and political services but, oddly enough, when the consumer buys a product and the product does not live up to expectations or the claims made by the producer or distributor, all too often we live with the loss and simply write the issue off. It is time the Irish people began to assert their rights as consumers, and to the extent that the Bill will help to put consumerism back on the agenda it is very welcome.

When it comes to consumer relations there is a type of consumer apartheid which is all too evident on the part of suppliers and frequently on the part of shops and distributors. The Bill puts all consumers on an equal footing and for that reason it is again very welcome. To point out what I mean by this, let me say that a few years back I had a complaint from a constituent who received a wrong delivery of an oil product from one of the major distributors. An honest mistake had occurred. I telephoned a senior person in the distribution company and within a matter of hours the matter was rectified. Shortly afterwards I came across an identical case where a consumer who had not been in a position to put pressure had a very similar problem with the same company and the consumer was left over a long winter weekend and into the early part of the following week before the oil product was replaced. Without straining our memories we can all recall only two short years ago oil consumers all over this country suffering loss because of poor quality oil issued to consumers in winter. They had no protection other than their capacity to lobby through TDs or get in touch with the company. In the sense that the apartheid attitude to consumers that has existed, differentiating between consumers who have some clout and consumers who are less powerful, will be wiped away by this Bill, it again is welcome.

A third reason for welcoming the Bill is that at long last it introduces into Irish law EC Directive 85/374 of July 1985. It reflects no credit on us that we are one of the last member states to give legislative teeth to that directive. If my memory serves me correctly, it was due to come into effect by July 1988, so we are a bit late; nonetheless it is welcome that finally we are giving teeth to it.

My welcome for the Bill is not without some questions. The Bill still requires an aggrieved consumer to go into court. While it lessens the burden of proof on the consumer — that is the main element in the Bill — by introducing the concept of strict no fault liability, the consumer still has to face the intimidating and potentially expensive majesty of the courtroom. Would it not be better were we to have a small claims court for the settling of claims under, say, £1,000 or £2,000? Many of the claims I see coming up under this legislation would fall into that category and I feel it would be wise and helpful were we to give consideration to moving in that direction.

The second problem I have with the Bill is that it fails to identify a role for the Director of Consumer Affairs and Fair Trade. I listened yesterday to the Minister for Industry and Commerce, Deputy O'Malley, giving an explanation for the exclusion of a role for the Director of Consumer Affairs and Fair Trade in the Competition Bill. I supported the Minister subsequently in the vote. But I have to say, to put it on the record, that I found his explanation that he did not wish to "burden the Director" less than convincing when the Director's specific wish to be burdened was clearly signalled recently at a number of public fora. It would be no bad thing if we were to incorporate a specific role in this Bill for the Director of Consumer Affairs and Fair Trade. I accept the point made from time to time that the Director of Consumer Affairs and Fair Trade has inadequate resources, but we should look at the question of improving his resources if we consider the possibility of expanding his burden.

We could have two elections on the one day.

That is not likely. The third problem I have with the Bill is that I cannot identify clearly where the right of action exists on imported goods. Section 2 (2) (e) of the Bill provides that "producer" means: "any person who has imported the product into a Member State from a place outside the European Communities in order, in the course of any business of his, to supply it to another." I am sure there is a simple answer to this, but I would like some clarification as to where the right of action exists on imported goods. Will it lie in the Irish courts and will the importer and producer automatically have to attend, or will the aggrieved consumer have to seek redress elsewhere — for example at the European Courts?

There is a related issue here in that goods can be imported into the EC by importers in, say, Germany, France or wherever outside this country and they can be distributed here by agents. For the purposes of this Bill will the agents of the importer be importers into this country and will those agents then be liable? I look forward to the Minister's response on these points. They are not particularly burdensome and I hope he will respond when he comes to reply to Second Stage.

In spite of any shortcomings the Bill may have, it is very welcome legislation. In a sense it is the beginning of a real consumers' charter in this country. While our present sale of goods legislation gives certain protection, it puts the onus of proof on the consumer. This Bill provides a different focus from that Act and it helps to lessen that burden of proof. We are all familiar with the horror stories of product liability, the horrific thalidomide case and the years of grinding battle the parents of damaged children had to endure before they achieved some semblance of justice. We are all conscious here too of the battle for compensation for HIV infected haemophiliacs, an issue made more complex by the fact that a State agency as well as private companies are involved. While I know many people in this country would suggest we should make the compensation payable and be done with it, the present impasse raises the problem of whether the major companies and at least one major multinational who have an involvement in this case are to be let off the hook. That is an issue which we on all sides of this House wish to see resolved at the earliest possible date.

Every day there are less dramatic cases where defective products cause injury or property damage and in effect because of the difficulties and complexities of existing law which is so tilted against the consumer, consumers simply give up and suffer the loss or injury. We all know of many such cases. I remember a short time back a major radio programme dealing with complaints about Zanussi dishwashers and a spokesperson from the distributors and the company saying these were only very isolated affairs. I would have believed in the distributor except for the fact that the following night my next door neighbour and good friend suffered a major fire in the house. The house was very badly damaged. The product was working throughout the night and only good luck prevented loss of life. The problem was a wiring defect which turned out to be very common in that model which was well known to the distributor at the time but which was in effect played down in all the publicity. My neighbour friend had to enter into a burdensome round of negotiations, first with his insurance company and then his insurance company sought to lay some blame on the distributor. The distributor presented a complicated issue because he had changed and there followed a tortuous six or seven months before justice was done in this case. My belief is that the existence of this law will make producers and their agents far less likely to try to shift their responsibilities and to that extent this is welcome legislation.

I had personal experience when dealing, on behalf of another constituent, with an Irish manufacturer of a shower unit which had the endearing habit of decanting water everywhere but in the shower. The manufacturer blamed the plumbers, the plumbers blamed the manufacturers and my constituent was left to mop up the mess on each and every occasion that somebody switched on this product in the sequence other than the secret sequence which it reacted to. Nobody paid damage in this case and the consumer was left to foot the bill. This legislation would greatly help in similar circumstances.

As already mentioned, the main effect of this Bill is to introduce into Irish law the principle of strict no fault liability. This will impose liability on the producer of a defective product or a component, irrespective of whether any negligence was intended in the manufacture of that product or component. The principle of strict liability is, as the Minister has said, different from fault liability, in which the negligence of the producer of the defective product must be proven. The Bill will supplement, therefore, existing laws, particularly the existing law of contract and tort, which is far less consumer friendly. That is a welcome change.

Now that we have introduced the concept of strict no fault liability into Irish law in this limited area I suggest we have a look at where that concept can be introduced into other parts of consumer relations — for example, the delivery of services, medical services, dental services, optical services, a whole range of services in specialist areas not just in the medical area but in the financial field. People suffer loss because of services in that area also and they have far greater difficulties, given the sort of mafia operation that the so-called liberal professions operate under — for example, the legal profession. Given the way they protect each other, perhaps we should start to look at whether the application of this principle outside products into services has something to recommend it. The remedy introduced by the Bill is the remedy of damages in respect of injury to a person or damage to his property from faulty or defective products. That is an excellent way of progressing. If damage is caused to the person or to the property from use of the defective product, the producer is liable, irrespective of whether he was negligent in the manufacture of the product.

There were a number of other points which were made during the course of contributions which were interesting and valid. In particular the point was made by Deputy Cullimore, and reflected by Deputy Barry, about insurance. I would have one fear that insurance companies, who are well known and are notorious for milking the Irish public, would seek to use the introduction of this positive legislation to hike up cover yet again. We all know that the insurance companies have fleeced the Irish public for many years. Their most recent outrage on the Irish public was their claim that a change in our courts system would result in lower premia. We know that that was a fraudulent claim. Every Member of this House has received complaints over the last ten or 12 months on the extraordinary difficulties which young drivers — even careful young drivers with good records — have in obtaining insurance. Everybody knows about hikes in insurance premia, particularly car insurance, which do not seem to be related to any objective criteria. I share Deputy Cullimore's fears. I would hope that the Minister for Industry and Commerce, who does have some powers in the matter of insurance companies, would take any necessary steps to ensure that some baseline study of the level of insurance costs arising from the area covered by this Bill would be established and that when the Bill comes into effect an effort would be made to police rigorously the baseline to ensure that the insurance companies do not use this Bill as another opportunity to fleece the Irish public further.

This is a fine Bill. It is good legislation. Deputy Hogan commented that it was well balanced. I think it achieves a balance in a difficult area. We do not want to go into the situation which they have in the United States where spurious claims can be made on the most extraordinary basis for huge amounts of money that can kill industry. None of us wants that, particularly given the jobs crisis which we all recognise. None of us wants to create a situation where Ireland becomes a difficult place to establish enterprise. However, none of us wants Ireland to be a place where we have to put up with defective products and where the consumers have to suffer loss day in and day out. While I welcome the Bill I look forward to the Minister answering the points I raised at the outset.

We should consider at this stage the new concept of a small claims court. It would help to create a less intimidating environment within which the Irish consumer could seek to vindicate his or her rights. It would be beneficial to all parties. There is the question of involving the Director of Consumer Affairs and Fair Trade. The Director of Consumer Affairs and Fair Trade is an office which is not as well developed as I would wish it to be. The Director of Consumer Affairs and Fair Trade should be involved in all matters relating to competition and consumer issues and should be to the forefront. The Director of Consumer Affairs and Fair Trade should have the resources to be seen as the consumers' ombudsman in all issues.

Finally, I mentioned the question of remedy. I am sure the Minister has an adequate answer on it. I compliment the Minister of State at the Department of Industry and Commerce, Deputy Leyden, for introducing this legislation. It is worthwhile legislation and I have no doubt it will improve vastly the situation of consumers in this country. I have pleasure in supporting and commending the Bill.

I now call the patient and co-operative Deputy McCartan.

I wish to indicate the support of The Workers' Party in principle for the fundamental ideas surrounding the legislation before the House today. We will support the legislation on Second Stage but will be advancing some reservations about the specifics of the Bill, which I hope to touch on very briefly, and will be pursuing these by way of amendment on Committee Stage. I hope the Minister or the Minister of State will take on board some, if not all, of the points that will be raised in regard to the legislation we are dealing with.

Before moving to the specifics of the legislation and those reservations about which I have spoken, there are some general points that need to be made. Consumer law in this country has come a long way from the celebrated case of Donoghue v. Stevenson — the snail in the bottle of beer case — which established for the first time the idea of responsibility on the part of a manufacturer for a defect in the product. This case in England in the thirties has been advanced to a great extent, both there and here through our courts, and culminating in time various items of legislation particularly in the area of sale of goods. Our legislation to date has been reasonable in those respects.

The new concept being introduced by the Bill is one which extends beyond the area of negligence, the rights of people to recover for loss and damage suffered from a defective product on the basis of strict liability. It is not an absolute standard; it is a standard that lays onus or responsibility on the producer, manufacturer and distributor of products on the basis that they should not be able to slip out of responsibility by reason only of the failure of the consumer to establish a case of negligence on the part of any one of the parties in defence. Nonetheless, it allows the party on the defence side certain provisions of protection which are dealt with in the directive and in the legislation itself. We have not been lax in developing and in keeping in line with international standards generally with regard to liability for defective products. This legislation will introduce for the first time into our consumer laws the concept of strict liability. The first matter that concerns me with regard to the legislation is the way in which the Minister of State presented it to the House today. Why has no explanation been given by the Minister in presenting the legislation as to the reason it has taken successive Governments such an extraordinarily long time to bring before the House what is basically very straightforward and succinct legislation? It is not as though this is something new. It is certainly new as a concept to be introduced into our law but it is not new as a concept in law generally, particularly in the context of Europe and in debate and discussion at European level.

There has been a directive in circulation since 1977 which has been debated by the European Parliament, the Council of Ministers and various EC committees on this issue. It has also been the subject of three separate reports by the Joint Oireachtas Committee on the Secondary Legislation of the European Communities here. I will deal with those reports in general terms shortly. In the first of those reports the point is made that the directive which has been in circulation since 1977 was based very closely on the Council of Europe Convention on Product Liability adopted by the Council of Ministers in September 1976. Since then there has been in existence a protocol convention at Council of Ministers level in the Council of Europe, available to the Minister and successive Governments of this country to work on. We have received no explanation as to why we had to wait 15 years for the production of the legislation that is before the House today. It is very straightforward legislation with no more than 14 basic sections. It is incumbent on the Minister to explain why it has taken so long to bring it before the House and to help us understand the defects, if any, in our legislative process which resulted in a year long period of gestation for legislation in this area.

I have not heard any Member, though I was out of the Chamber for a brief Oireachtas Committee on the Secondary Legislation of the European Communities. Perhaps Members do not have a great deal of regard for that committee. This highlights an attitude that exists generally within the Dáil with regard to the work of committees of the Dáil. There is a massive disinclination on the part of the two major parties in the House to assist in the establishment of committees. A game has been played over the last year and a half between the Government and the Fine Gael Party on three important committees: the law reform committee was not established because Fine Gael refused to participate; the committee on foreign affairs will not be established because Fine Gael and Fianna Fáil cannot agree on who should chair it and the committee on crime is not being established because what had been previously agreed between the Whips of the various parties regarding the appointment of a chairperson to that committee has been reneged on by Fine Gael.

It is in accordance with precedent.

They are some indicators of just how indisposed we are to the establishment of committees. Where committees have been established they have proved effective, for example, in the area of child care, marital breakdown and foreign adoptions. I lament the fact that even though the Minister, the Government and the House have available to them three separate reports of the Joint Oireachtas Committee on the Secondary Legislation of the European Communities, no one referred to them or their work. I had the privilege of sitting on the committee of the last House that dealt with this matter as far back as 1987. The report was eventually concluded in July 1988. That report referred to "the Directive since its first publication in draft form in 1976", and yet it took until 1988 to come to a conclusion on the matter. The deliberations took place not only in the committee and at national level here but a lot of consideration was given to the matter at European level within the Council of Ministers. As I have said, the work of the joint Oireachtas committee was concluded in July 1988. There was a requirement that the directive be in place by July 1989, and we have only now, almost two years later, found time to first address the issue.

The work of the joint Oireachtas committee should not have been overlooked by the Minister in his presentation of this legislation. Regard should have been had to the work that was done in that committee. We should at every opportunity promote the work of these committees and recognise that the only way we will ever seriously improve on our legislative performance is by expanding the role of committees in this area. It is regrettable that the joint Oireachtas committee reports were not adverted to by the Minister or indeed by any other speaker I have heard so far in the debate.

I will very briefly refer to the reports. They are informative and will help us arrive at some conclusions with regard to the effectiveness and comprehensiveness of the legislation before the House. The first report was produced and signed by the current Taoiseach, Deputy Charles J. Haughey, on 23 March 1977. It is a brief report in the extreme. It indicates that the Confederation of Irish Industry at the time were "completely opposed in principle to the proposal." They went on to record in some detail the reasons for this, many of them spurious in the extreme. The report I am quoting from, volume 22, states that: "The Confederation believes that the increased cost will affect the price and availability of nearly every product and will seriously impair the ability of many concerns to function". The Irish Insurance Association also argued that the directive would have to be amended in several respects. The report states: "it [the association] believes that the draft needs to be amplified so that the precise incidence of damages can be accurately assessed". It goes on to say that the association were of the view that "Pending clarification it [the association] finds itself unable to give any approximate indications of the likely costs in insurance to Irish industry". Having heard those views, needless to say, the committee at the time concluded that while it was a laudable objective to make it easier for persons to get compensation for damages caused by defective products they believed "that the proposed Directive raises many complex issues that need to be examined before a final decision is taken". The matter therefore was not advanced very strongly by the first report of the joint Oireachtas committee.

The committee returned to this matter in their second report which was concluded on 13 May 1981. The report was signed by the former Senator Alexis FitzGerald.

The views of various interested bodies on this important directive were recorded, and it would appear that at that stage many more of them had become involved and were taking some cognisance of what was going on. It has to be borne in mind that we are now five years from the time that the draft directive was first circulated.

The Confederation of Irish Industry again led the field and were, to say the least, as highly antagonistic towards it as they had been in the earlier report. They were very disparaging, stating that they did not believe it would carry the harmonising influence intended by the directive. They stated: "if adopted, it will disturb competition within the Community and impede Ireland's economic development and industrial progress." The confederation went on to expand their arguments against the directive, and actively tried to impress upon the Oireachtas Joint Committee — and, I have no doubt, the Government of the day — that the directive should not have any currency whatever in Ireland.

The Federation of Irish Chemical Industries, according to the report, found the proposal fundamentally unacceptable. They, again are a very important sector of industry, a sector that successive Governments of the period highlighted as one that could led to an expansion of jobs. Leading components of that industry internationally have been invited into the Irish economy. In 1981 the report found that the idea of consumer protection on a strict liability basis was unacceptable to them. The report records their most serious criticism being the refusal of the Commission to acknowledge the reasonableness of providing a defence for development risks. The industry, if they are the originators of the whole debate, have to take a bow, because in time the final directive as drafted did concede that point and left open the right of each country to derogate on the grounds of development risks or state of the art defence. As the Minister has said, Ireland intends to follow that provision sheepishly rather than seek a derogation.

The Federation of Trade Associations recorded their reservations about the directive, saying that they were not satisfied that the Commission had made a sufficiently strong case for the introduction of legislation dealing with product liability. That was a remarkable position for any national organisation describing itself as a Federation of Trade Associations to adopt in 1981, given the degree of debate and negotiation that had gone on in the drafting of the directive in the first instance as much as five years beforehand.

The National Consumer Advisory Council joined the debate and met the Oireachtas Joint Committee, which I was happy to note. They supported the directive in general.

Finally, the Irish Insurance Association, who had not been clear four years before at the first report stage on where they stood, said they were in a position to meet their obligations and requirements under the legislation once it was in place.

The final report dealt with the final draft directive issued by the Commission in July 1985. It should be recorded in this debate that, whilst debates had taken place since 1976, the final directive was set, copper-fastened and available to all of us, including the Minister and the Government, in July 1985. One has to ask why the matter was not progressed by the previous Coalition Government of the Fine Gael Party and the Labour Party, but, even though they did not use their two years, the directive was available to the Fianna Fáil Government in 1987, four years ago. Earlier I suggested that Ireland had a deadline of July 1989 to implement the legislation. I wish to correct that, the deadline was in fact July 1988. The directive required Ireland by whatever device to have such legislation in place in this State to protect consumers along the lines indicated. Ireland singularly failed to meet that deadline. So far in the debate no Government Deputy, including the Minister, has given any explanation for the failure to meet the deadline. The Minister has a duty to provide such an explanation, and I hope he will take an opportunity in the debate to respond.

In July 1988 the report of the Oireachtas Joint Committee, of which I had the privilege to be a member, again recorded the various views of the interested parties. At that stage of the debate it was good to note that the Confederation of Irish Industry had at last come out of the nether reaches of obscurity and recognised that they were obliged to come abreast of international developments and views. They accepted that the directive would in time introduce the kind of standards we would all like to have for consumer rights and producer standards. They also had several reservations about various provisions they had urged the Government to take on board.

By and large the 1988 report records the general agreement of all parties, consumer, producer and manufacturer, to the adoption of the directive, perhaps on the basis that it was inevitable and mandatory for Ireland to act upon it. The committee were able to recommend that legislation should proceed, and pointed out that it should be primary legislation and not a ministerial directive, as had been argued by some representatives of that committee. I am glad that we have at least done that much.

I am still confounded as to the reason it took four years to produce what seems to be a very small Bill, given the degree of work, research and analysis that had gone on for many years. It appears from the speech of the Minister of State that the only hint he will give is that there was "consultation" with the different trade and consumer organisations. The issue was taken a little further by Deputy Cullimore, who obviously has access to information not available to myself, who referred to seminars that took place and involved the different interested organisations. I remind the House that the Minister of State said there had been widespread consultation with industry as well as with consumer and trade interests in the course of the preparation of the legislation. I also note that the Minister of State was obliged in his speech to yet again make the point that the Bill is not anti-manufacturer, anti-producer, or anti-industry but that if it is implemented and put into good effect it will bring standards up to the stage at which producers and manufacturers will benefit. The obvious point that has to be brought home to us as Europeans is that our manufacturers and producers, who contend for the market in Europe, have to deal with those standards in other countries in any event so they should face them at home. All of that leads me to believe that there had been only a very late conversion to the whole concept on the part of the Confederation of Irish Industry and private manufacturers and producers. While they may have been saying things in 1988 and earlier to the Oireachtas Joint Committee, they persisted in a backward and obstructive attitude to this directive and to the development of the legislation. That is certainly the impression that comes across. Unless we all accept that our primary responsibility is to the consumer we will have trouble in getting this legislation through and in implementing it. We should recognise that this is an important development in the area of consumer protection and that it provides motivation towards higher standards. We will make substantial progress here as long as the principle and spirit of the legislation is taken on board by everyone involved. It was important in the context of this debate to outline what seems to have been a very obscure attitude in Irish industry towards the directive over the last 15 years or so, an attitude that seems to have persisted until a short time ago. This legislation should now get a speedy passage through the House.

There are some specifics in the legislation about which I and The Workers' Party would have reservations. I will deal with them in the order in which they appear in the legislation. My first reservation related to the proposal to exclude primary agricultural products and fish products from the legislation. It is a fundamental mistake on the part of the Government not to include these items in the provisions of this legislation. This point is made very well in the third report of the joint Oireachtas committee on this issue where the committee dealt with the submission by the Director of the Quality Assurance Research Unit at University College, Galway. In page 11, paragraph 24 of the report, the Director of the Quality Assurance Research Unit advanced a case for seeking a derogation to include primary agricultural products on the basis of our international standing as a food exporting country. He felt that the inclusion of primary products in the scope of the directive would protect and enhance our image as a source of pure and wholesome foodstuffs. That report is worth referring to if only to highlight the issue and ask the Minister of State why a view so well founded was ignored and departed from. The point has been taken up by other Deputies. I am glad of that, so that this is not seen to be a point which is being made against farming interests or the agricultural industry. We must recognise that the future of agriculture lies in our maintaining the high standards that currently exist. Because of our high standards we should not fear the provisions of this legislation. By implementing this legislation to cover primary agricultural products we have a marketing instrument for promoting Irish agricultural products abroad. The Government should look carefully at this issue and be slow to depart from the advice given.

The Minister of State did not advance any cause in this area. It needs greater amplification before we move from it. The Minister of State in his speech said that primary agricultural products have been excluded from the legislation because they can be particularly prone to hidden defects caused by environmental factors beyond the control of the producer. I have a small grounding in agriculture, having been brought up on a farm, but I do not have any great scientific knowledge. I do not understand the Minister's concept. I was not convinced of the Minister's arguments during the deliberations of the joint Oireachtas committee who considered the report. What environmental factors would be beyond the control of the producer? The technology available to farmers today establishes beyond doubt that there is information available to everyone in the industry so that they can know exactly what is going on at an environmental level. There are no environmental factors beyond the control of the producer, and there is not a serious case to be sustained here.

The Confederation of Irish Industry favoured not seeking a derogation. They favoured excluding agriculture, but we have to remember that they were against the directive when it was circulated and they only begrudgingly accepted the principle of the directive. Beyond their argument the cause has not been advanced very strongly. There was no submission from the Irish Farmers' Association or from any of the farming bodies to the joint Oireachtas committee. Perhaps they were relying on the Confederation of Irish Industry but that was not made clear at the time. Reasoned research from University College Galway makes the point that we should aim for the highest standards in agriculture and in agricultural products. We have the highest standards and we should have nothing to fear from legislation in this area.

In time the emphasis in Irish agriculture will move towards the more wholesome side of the industry. This will result in the minimisation if not the negation of the so called environmental factors which are causing problems for the Minister of State. I will certainly press this issue on Committee Stage. I hope the Minister of State will look at the matter more carefully.

The second issue I want to raise is the limit of £350 on the right of people to recover damages from defective products. There is not an upper limit set on how much can be claimed, but there is an unfortunate starting off figure of £350. That is based on the fact that the directive of 1985 talked about 500 ECUs being the limit. It also referred to the financial limits, including this limit, being reviewed every five years. The first period of review has passed and I should like the Minister of State to say whether there has been any change in the level of ECUs fixed in this area. I would be arguing against any upward movement, but the Minister should state the position in this regard. It is another reflection of the difficulties encountered by being so tardy in bringing our legislation forward. A sum of £350 may not seem a lot in regard to the issue with which we are dealing but it is an incredible penalty to impose on the small consumer, the person who probably can least of all, in the first instance, afford to buy the product and least afford to live with the defective item when it is useless or causes damage as a result of being defective.

I have no doubt that Deputies who attend at advice centres have met many people who suffered loss and damage as a result of defective goods — electric goods immediately spring to mind but I do not want to single them out — and who obviously do not have the resources to buy a replacement or to go to the District Court to pursue a claim. They are being penalised because they cannot afford a replacement unit and do not have the resources to go to court to pursue a legal action to establish negligence on the part of the producer, manufacturer or distributor of the item. They do not have any remedy. The people who would benefit from this legislation — those with small claims — are being told that they have no right to claim that the producer, manufacturer or distributor have a responsibility in this regard, which is wrong in principle. I accept that it is in the directive but that is for guidance purposes only in this area and is not mandatory. Even if it was mandatory, I say that this country — a small island community — could easily argue and be respected for saying that the circumstances in our country should mean that we will not be bound by this provision. The type of argument we could produce is the fact that over one-third of the population live below the poverty line, that we have the highest rate of unemployment in any EC country and that we have a very expensive legal system requiring a lot of money on the part of the litigant and a very inadequate legal aid system. Until we come up to the standards of our European partners we would be lauded for saying that we will not introduce this lower limit provision.

The point has been made that this is a movement in the wrong direction. At a time when the Programme for Economic and Social Progress makes a commitment to examine the establishment of a small claims court we are failing to extend legislation in a fundamental way to a whole range of small claims. We are saying that there will be one law for the more substantial claimant — the rich — and another law for the poorer claimant. I accept that is not a very precise analogy, but by and large the people most affected by the lower limit will be those who cannot afford to take legal action and to go to court to pursue a claim for negligence as opposed to the strict liability issue, which is so much easier to establish. Those people simply will not have the means to replace the defective products. It is a bad provision and I ask the Minister to look at it again.

The next issue is the question of the ten year limit on any action. The point is made in one of the reports — I cannot immediately recall which one — regarding the position of an action which might accrue in relation to a minor or a person suffering from a disability. That position needs to be clarified before we accept the absolute of a ten year limit. Why should there be a statute of limitations apart from the general law of limitations? Very good legislation in this area was introduced recently by the Government based on the principle of discoverability saying that an action runs from the time that the defect could reasonably have been discovered, not from the time when the contract is made or the product is sold. In regard to a minor the period runs from when the minor becomes an adult and the same applies to a person considered to be mentally defective. Those periods of limitation are important. The concept of discoverability is also important and has been taken on board by the Government in their recent legislation in this area. However, it seems to have been substantially departed from by the absolute ten year period of limitation being proposed in the legislation, based on the directive. This matter should be further looked at.

Business should not be allowed the benefit of an absolute time limit, such as ten years, where that business is still in existence and where no injustice can be shown to be caused by the lapse of time before an action is taken. If a person has suffered damage because of a defective product it should be left to the courts to decide whether the action should proceed after a substantial lapse of time based on arguments made by either party that the lapse of time would prove an injustice to the person being sued because of inability to answer the claim, which is the law at present. Under our statute of limitations that is available to a litigant who is being sued after a substantial lapse of time and where a court has a residual jurisdiction to say that an action should not proceed because it would be unfair or unjust to the party concerned. That is the proper formula to be adopted. A ten year absolute limit is not good law, it is too restrictive and should not be adhered to. It is not in keeping with the spirit of the legislation, which is to protect the consumer as far as possible.

Section 12 extends the provisions of the 1988 Courts Act with regard to no jury hearings. The Workers' Party were implacably and fundamentally opposed to that legislation when it came before the House. We fought it as vehemently as we could, but, having regard to our numbers, obviously not terribly successfully. However, we were the only party at the time who said that there would not be the spin-off available to the lay litigant, the insurance industry and the community as a whole by the abolition of juries in civil matters. Our position then was, and still is, that the jury was a democratic reflection of the community at large in the legal process and that it was always important to maintain that democratic community involvement; otherwise we would develop an élite and rarefied legal climate which would not serve the interests of the lay person.

I am reminded of an incident which occurred the other day in the Circuit Court in Dublin. A minor came before the court seeking damages for an injury which occurred on a CIE bus. A judge heard the case at 11 a.m. and, having heard the facts, ruled, in the absence of a jury, that the award offered was inadequate, as he was entitled to do, and instructed the parties involved to come up with a more generous figure than the one of £8,000. However, for some reason the case was heard by another judge in the same jurisdiction in Dublin within half an hour who ruled that the figure was too generous and should be reduced to £7,200. Therefore, in a matter of half an hour the litigant who was looking at the prospect of being offered a figure in excess of £8,000 ended up with an award closer to £7,000. Chinks can appear and for this reason we should as far as possible have maintained in the legal process a democratic community voice, the jury service.

The point that needs to be made is that we were told in 1988 during the course of the debate on that Bill that if we got rid of juries in civil actions in the High Court civil actions would be heard more quickly and that the backlog would be cleared, but this has not happened. I accept that there has been an improvement, but claims are not being processed and dealt with as quickly as they should be. There is still a huge backlog in the High Court. We were also told that the cost of insurance premia would be reduced for the consumer, but clearly this has not happened. If anything, the cost of insurance premia has rocketed during the past two years since the legislation was put in place. Our case has been well made and I make it again today. We have not been well served by the abolition of juries in civil actions.

Section 12 of the Bill provides that the provisions of the 1988 Act shall apply to all actions taken under this Bill — in other words, all actions taken under this Bill will not be heard before a jury regardless of how complex the issue involved are and of the important need for a jury to have an input in deciding on the facts. That is to be regretted. We will oppose that provision in principle even though this does not make a great deal of sense now, given that juries have been abolished. However the point is worth making.

Another point which needs to be made is that, if the Government persist in extending the list of actions in which juries are abolished and if we are to introduce the concept of no fault liability in this area, it is time we examined the question of a national insurance scheme to ensure when an accident occurs or when damage is caused people will be offered a fair amount in compensation, following an assessment by a tribunal of lay people or judges or a combination of both, to be paid out of a national insurance fund. We should get away from the idea of litigation in the first instance, of hit and miss procedures and the question of negligence and fault, and recognise that people, even though they may have been the authors of their own accident, have a right and entitlement to be looked after and cared for. One way of doing this — this is what they have done in New Zealand and elsewhere — would be to get rid of the parish industry, insurance companies, which it has been suggested by Deputies on both the Government and Opposition sides of the House, has been milking the Irish consumer for far too long. We should get rid of them in this area and establish a national insurance fund. It is heartbreaking on the one hand to see people, following a lengthy hearing in the High Court and elsewhere, walking away with nothing having failed to prove negligence because they did not have the capacity or the resources to pay lawyers to argue their case for them and, on the other, to see others who have suffered horrendous injuries walking away with a massive amount of money in compensation. This imbalance, the vagaries of the litigation system, should be addressed in this legislation.

I am sorry to interrupt the Deputy but the Deputy should wait until Committee Stage before going into detail. The Deputy is generalising too much and is not sticking to the Bill.

I am sorry to hear you say that. I was just about to move on to the next point I want to make, which is that The Workers' Party welcome the provisions contained in sections 8, 9, 10 and 11. We welcome in particular the provision that joint and several liability will apply where two or more parties are liable. It is an important right that a person can pursue the main litigant when a product has been found to be defective and damage has been caused. It is also important that liability will not restrict the other rights of the consumer protected by section 9.

The provision that a producer, manufacturer or distributor will not be allowed to limit or exclude his liability in a contract is equally important and should be welcomed.

The final matter I would like to deal with is the Government's proposal to seek a derogation and allow industry to avail of the "development risks" or "state of the art" defence. The Oireachtas Joint Committee dealt with this matter in their reports, in particular their final report in 1988. I accept they decided to recommend that the Government should seek a derogation in this area but I expressed some reservations about this at the committee.

I would like to express my concern about the proposal contained in the Minister of State's statement. I think the Government are wrong to seek a derogation. Given that the overall aim of the legislation is to provide a high degree of protection for the consumer and raise standards in industry, it is important that we do not allow industry to avail of the "development risks" or "state of the art" defence. It should be pointed out that other European countries, such as France, Luxembourg, Belgium and Denmark, do not provide this safeguard for industry in their territories. The committee were moving towards this recommendation in finalising their report in 1988 and I would ask the Minister to indicate the direction in which other countries are headed. There is no uniformity on the issue and it is an area where high standards should be achieved.

The Minister of State made the point that if we fail to seek this derogation we would in some way discourage industry from carrying out research, but I do not accept that. It is clear given the standards which have been achieved in other countries, that they have been able to take without any difficulty the concept that research and development should be covered and that defence should not be available to industry.

The point is that if a litigant is to take an action of negligence against a manufacturer it is for the manufacturer to say at the hearings that that was the best they could have done at the time even though subsequently another method or means of going about the manufacturing process was achieved. The Minister suggests that by not introducing this derogation it would act as a disincentive for industry to invest in this country. I think the motivation of all industry is profit; and industry in all areas, particularly when they are moving into the unknown, will always continue to take risks, to speculate and to attempt to maximise on a new idea irrespective of the state of consumer law. My point is that they are always susceptible to legal action in the area of negligence and they do not have available absolutely the state of the art defence. Why should we extend it to them now simply because we are introducing the idea of strict liability where the primary concept is to protect the consumer?

This issue is important because we have many instances, particularly in the chemical and medical industries, where an attempt was made by industry to hide behind the idea that they did not know better at the time. The thalidomide case in Britain was a classic example where they tried to hide behind the defence that they did not know better at the time. But after a protracted litigation and examination of the facts this position was found not in fact to be entirely the truth and after many years these unfortunate victims succeeded in getting their just compensation. We have an almost analogous situation in this country where the Government have failed to honour the just claims of the haemophiliac victims of the HIV virus who were administered over a period a factor which was not entirely free of the virus. Their claim is still outstanding because we do not have in our legislation to date a strict liability provision. If it existed that litigation would be settled a long time ago. Under the provisions of this legislation it would be settled against the State. The present law is based on negligence, not on strict liability, and because of that they are still waiting. In fact, some have died without any compensation being afforded to them.

This point has been raised by other Deputies, but I wish to advert to it because I am very directly involved and concerned, as our party are, with their cause. The point has been made that we could seek to amend the legislation to make it retroactive. However, if nothing happens on the Government side to settle the haemophiliacs' just claim, The Workers' Party would consider an amendment in that respect which would be specific and just case. I do not believe it is acceptable to advance the cause that we should make all claims arising from this legislation retroactive. It specifically provides in the legislation that claims will arise only for goods manufactured, processed and circulated after the passing of the law and it coming into effect. That is only sensible because one cannot hold the manufacturer or producer liable for standards that did not exist when the product first came into being. However, in the case of haemophiliacs, because of their just case and sad circumstances, the House could make an exception of their case. As I have said, unless The Workers' Party are satisfied that progress is being genuinely made by the Minister for Health in their cause we will put down a specific amendment on Committee Stage which would allow the case of haemophiliacs to be dealt with under the provisions of the Bill.

Finally, I want to deal with the defences that are available to the manufacturers, producers and distributors under the legislation. These are povided for under section 6 of the Bill. I believe that some of them are much too widely drafted and provide much too easy cover for the producer of defective products. Again I am working from the position that our primary concern must be for the consumer and from that perspective, some of the defences, particularly those in paragraphs (d), (e) and (f). I am mindful of the Chair's counsel not to be over specific and I do not intend to go into them in any greater detail except to ask the Minister how breaches of section 6 (d) would be dealt with. Section 6 (d) states that a producer will not be liable for a defect that would arise due to compliance with any requirement or an enactment by the EC. But would the case of the litigant who suffers damage from the defective product as a result of the inept or negligent compliance with the directive be treated on the basis of negligence or strict liability? This should be looked at; otherwise it deserves amendment before Committee Stage. Section 6 (e) deals with defects that arise due to the state of scientific and technical knowledge available. I believe this should be qualified to say that the state of scientific knowledge that should have reasonably been known with due diligence on the part of the manufacturer at the time the process was being initiated. This is an important qualification. Where a producer does not exercise reasonable diligence in this area, the standard should be one of strict liability and not of negligence. If a manufacturer seeks to offlay responsibility to the primary manufacturer or the manufacturer of a component used, I think this must be coupled with a requirement that the person making the claim, the manufacturer or distributor or whoever, is obliged to join with the other party to the proceedings so that the ultimate court hearing will decide the issue between them without allowing the person who raised this issue at the court hearing to slip out on the basis of being able to pass on responsibility to a third party. If a defence as in section 6 (f) is relied on, it should be coupled with a prior obligation on the manufacturer to join the third party to the proceedings and have the issue determined by the court of hearing.

I am sorry to have taken some time with these points but they are some of the important reservations that The Workers' Party have with the finer detail of the Bill. I have gone into these points because I hope the Minister will take some of them on board before Committee Stage and deal with them by way of amendment to the Bill and that the others will be dealt with in his reply at the conclusion of Second Stage.

In summary, The Workers' Party welcome the Bill as an important advance in consumer law. It comes as we are moving towards the market of 1992. There is need for standardisation of the laws and for fundamental protections for the consumer on a strict liability basis. For too long there has been a failure properly to compensate people for sharp practices on the part of manufacturers, on the basis that they did not have the resources, the expertise or the means to establish negligence. That day has ended.

The Minister could go somewhat further by taking on board some of the reservations to which I have referred. We will support the legislation at this stage.

I welcome this Bill, which is long overdue. We are all aware of the necessity at times, especially around Christmas, to withdraw products from the market which have been found to be defective. It is appropriate that this Bill should be put on the Statute Book in the interests of consumer protection.

The need for consumer protection is particularly evident in high risk areas such as the DIY sector. This sector has grown enormously over the years and people who purchase various types of machinery and equipment must be comprehensively protected in the case of faulty goods.

Many of the defective products which are found to be on sale here have been imported from outside the EC. The need for high standards might be raised in the context of the GATT negotiations. Within the Community we are responsible for our own affairs and are in a position to protect the consumer but the import of non-EC products can cause problems.

Deputy McCartan referred to the thirties and to the growing awareness of the need to protect the consumer against unscrupulous manufacturers and suppliers. The negative lobby formed by the umbrella bodies of industry is unacceptable, if predictable. Unfortunately those manufacturers who maintain high standards and in respect of whom there is no need to legislate for consumer protection must bear an insurance cost. The manufacturer who is concerned about the quality of his product will depend on selfregulation rather than legislative provisions in order to maintain high standards. Manufacturers of this kind are pointing out that because of their brand name and reputation there is no need for this protection and that they have their own in-house quality controls. That point must be balanced against the broader need for the protection for the consumer.

I welcome the Bill and wish it a speedy passage through the House. Some of the amendment which have been outlined by The Workers' Party are not realistic. Deputy McCartan went into detail about legalities which would be an intolerable burden on an already over-burdened sector. It is like being against everything and for nothing, looking for the ideal. The Minister has struck the right balance and I hope the legislation will be on the Statute Book as soon as is practicable.

As a member of the Joint Committee on Secondary Legislation of the EC I welcome the Bill and compliment the Minister on its comprehensive nature. Deputy McCartan referred to the time lag between the discussion of matters such as this at committee level and their further discussion in the House. Considerable changes take place which affect one's attitute to legislation in a relatively short space of time. That is the case here. The committee have through the chairperson repeatedly brought to the attention of the Government and the institutions of this House the need to bring forward legislation as quickly as possible at a time when people are conscious of its implications and the various submissions are fresh in the mind.

I welcome this consumer protection legislation which was much sought after and long awaited. It is EC led and driven in the sense that we must comply with the directive. We have all heard cases of consumers who have been disadvantaged because a product proved to be faulty. A positive development is the greater awareness of the need to provide quality products which producers and processors can stand over and which are not likely to injure or cause damage. It enhances our standing in the marketplace, pariticularly as an exporting country, and there is also a benefit in insurance costs. We have all become conscious of the need to respect the rights of the consumer. We must move away from the position where a consumer returning a faulty product to a supplier could meet with a totally negative response. Such a response determines the consumers attitude to both the product and the supplier. In a case where a product has been proved to be faulty there should be no quibble about its replacement.

I used to be involved in the machinery business and if a consumer complained about a fault I would first try to find out how often the fault had occurred. If the fault occurred at an early stage one could be sure that the same fault occurred in other units sold around the same time. That is a clear indication of liability. This legislation will impress on producers, processors and suppliers the need to ensure that the consumer, the person who pays the piper at the end of the day, is catered for and is not damaged or injured in any way as a result of a deficiency in a product.

Like my colleagues, Deputies Barry and McCartan, I see no reason for excluding agricultural products from the scope of this legislation. It would benefit our agricultural products if they were to be included. We are exporting worldwide and it would be of great benefit to us in world markets if we could say that we did not have to have any derogation but decided to allow this legislation to fully encompass all of our products, including our agricultural products. We could use that as a selling point abroad. There is an urgent need for a quality mark for all Irish products which could be used as a pre-determining factor in deciding whether or not a product is safe, falls within the guidelines set down and is satisfactory. Products bearing a quality mark indicating a sufficiently high standard would obviously be more attractive to insurance companies who might have to insure against liability. The introduction of a quality mark would mean that the industries, the producers and the suppliers would have to police the quality marking itself, thereby eliminating much of the litigation that goes on at present.

This legislation is very positive. It has negative aspects as well, and Deputy McCartan referred to one or two of those. One thing I am acutely conscious of is the constant recourse to the courts for decisions on virtually everything. If this goes on the High Court and the Supreme Court will have to sit on a 24-hour basis to resolve all the problems that are likely to be referred to them under this and other headings. Alongside that are the huge costs. This is a negative aspect of the Bill. I am in favour of the concept but there are aspects which are likely to have a cost impact to be met by the consumer.

Deputy McCartan mentioned the possibility of a national insurance scheme. This may be necessary in the future because there is such a welter of applications and so forth to various bodies and it will be impossible for anybody to obtain insurance in the next few years if the present trend continues. It has been suggested that people should be compensated in some way whether or not they have been negligent. I accept that. However, the system should not be so open-ended as to allow repeated frivolous, and sometimes fraudulent, claims to be made resulting in massive increases in insurance premiums which have to be met by the policyholders. This is happening as a result of awards made by courts which can be higher or lower depending on the judge or court. This proves one thing, that none of us is infallible, even the courts.

One weakness in the Bill is its impact on costs. If we had the quality mark I spoke of it would be relatively simple for any industry to police its own quality and product liability and allow insurance companies to make cover available at a reasonable rate without impacting on everybody else. It is here that I want to mention the national insurance scheme suggested by Deputy McCartan. It has been suggested that that might be an answer to the problems. In a country that has such ready recourse to the courts there will ultimately be a sharp increase in insurance costs. Should it fall to consumers in general to pay the cost of that compensation or should everybody in the community shoulder the burden? That is a question to which nobody has a ready answer but it must be asked and addressed very soon in this House. If the system is too open-ended, if there is too ready recourse to the courts system, ultimately all the experts will have been called together and will have talked each other out of existence. Eventually somebody has to make a decision as to the liability or otherwise of a particular person. Should everybody in the country be insured to cover such eventualities or only those who are at present covered for public liability and product liability? In the latter case the extra cost will be added to the price of the products and the consumer still ends up paying through no fault of his own.

A number of people have again and again gone to the courts here with frivolous claims for huge damages on foot of severe pain, incapacity and so on. This was proven in the courts and accepted. If you consult with some of their neighbours and ask them what they think about it they generally have something else to tell you, the nub of the story being that the rest of the community who pay insurance premiums to cover against liabilities very often end up paying for this very claimconscious society we are now developing. The success or otherwise of this legislation will depend very much on whether we decide to be reasonable and rational and have high quality products with inbuilt policing processes which will eliminate many frivolous actions of the type to which I have referred; or proceed down the road of endless horrendous legal battles whether we decide to go for broke and end up attempting to sue somebody else in the hope of easy pickings.

The agricultural area is covered in the Bill. After food has been processed it comes within the ambit of the legislation, but the introduction of additives before processing is becoming very prevalent. I agree entirely with my colleague, Deputy Barry, that there is a good case to bring that aspect of our industry within the ambit of the Bill, even though it was felt at the time of the discussion at the Joint Committee on the Secondary Legislation of the European Communities that it was not desirable for climatic and environmental reasons.

A number of other speakers wish to contribute, so let me mention just a couple of things. We all at some stage have had reason, having purchased a new car — touch wood, I have had no bad experience with my last one — to go back to the supplier and make a complaint. How many times have we seen lines of motor cars withdrawn for review of an item in the manufacture which has threatened safety and so on? That happens regularly. How many times have there been little faults that have never been mentioned for which the consumer is paying regularly? When he or she goes back to the same supplier and asks to have the matter repaired, once it has gone off warranty it becomes part of a new and very expensive ball game. An examination of the type of complaint raised in that way would reveal that the same queries come up again and again. That should not be so in respect of a relatively new product.

In regard to medical products and preparations, reference has been made to haemophiliacs whose unfortunate plight has been discussed in this House repeatedly. The thalidomide babies have also been referred to. This legislation must have a bearing on those cases and will be a warning to producers and manufacturers of products which heretofore they could very well say were quite harmless, that you could eat, drink or rub as much of them on as you liked. In future they will have to be a little more circumspect because they themselves are to be liable, rightly so, for the quality of the products.

Few of us can have driven over the roads in this country without noticing some of the very large and prominent potholes which appear from time to time. The Minister sitting opposite might not want to accept responsibility for those, but I assure him they exist even in his own constituency.

I can speak on that with some authority.

I and, I am sure, every Member of this House have seen roads resurfaced during the summer when surface dressing is carried out and have driven over the same roads three or four weeks later to find part of the surface has disappeared. When we ask questions about that we are told there was some little difficulty, some chemical problem. We often wonder whether the public, the taxpayer, get good value for money there. We do not always hear what exactly happened, whether the firm who supplied the material in the first place were asked to supply new material free, gratis and for nothing, as they should be in a system of full product liability. If a product is supposed to meet requirements and the supplier, manufacturer or producer has to supply the same product within a short time to do the self same job and is paid for it a second time, obviously serious questions have to be asked.

A range of household products have been mentioned by other speakers and I do not propose to discuss them in depth, but they range from washing machines to cookers, frying pans, electric irons and so on which have an unfortunate habit of developing peculiar traits. It could well be the old story of the Friday manufacturer or the Monday manufacturer on the assembly line or the pre-bank holiday manufacturing assembly line or the post-bank holiday line, as they were commonly known in various trades up to recently when stricter quality control was introduced. However, there are still a few of them around. But, generally speaking, manufacturers are more readily available and more amenable to making amends that they were. They will not be so readily available or amenable when it comes to damage. Replacement is one thing but the damage or injury resulting from the faulty product may be serious. I hope the good relationship which has been nurtured and built up between consumers and manufacturers over the last number of years will not now falter or be injured in any way by the introduction of this legislation which has its positive and negative sides.

The Minister mentioned building materials in his speech and referred to a house made up of materials which were moveable and had suddenly become immoveable. That is interesting. It should be covered by other legislation as well, legislation which incidentally, was before this House for the last six, seven or eight years. Without a doubt there is a need to ensure that, notwithstanding the six year guarantee scheme, this legislation should take within its ambit the whole area of construction and house building. In the construction of a building a number of products and components are used which, if they fail individually, can have a fairly dramatic impact on an entire structure and a knock-on effect on other products. Therefore, it is important that they come under the provisions of this Bill.

I will not detain the House further except to mention that under section 10 of the Bill a disclaimer in a contract will not be sufficient grounds for somebody to opt out of the system. The disclaimer will not be accepted, rightly so, because if a contract is being made and part and parcel of that contract has within it a disclaimer to the effect that the manufacturer, the producer or the supplier is in no way liable, then there would be no sense in having legislation like this before this House. It would be completely and absolutely meaningless.

In conclusion, I welcome the introduction of the Bill. I am sorry it has taken so long to bring it before the House since it was discussed some considerable time ago by the Joint Committee on the Secondary Legislation of the European Communities. I note the exclusions and the inclusions and I hope we will not see a hike in costs, such as insurance costs, as a result of the introduction of this legislation. I have referred to the legal profession and the ongoing wrangles in the courts. I would not like the insurance companies to see this as an avenue and an excuse for hiking up insurance premia or any other cover to people who are likely to require cover under this legislation. There is a tendency in this country to do that type of thing, especially in the run up to 1992 when we are supposed to be rationalising and generally making available to all our consumers a better deal.

I would like also to join with the previous speakers in welcoming this Bill to the House. It has taken some time to reach the Floor of the House. The introduction of the Liability for Defective Products Bill brings to an end years of protracted negotiations among the member states and represents a significant advance in the area of consumer protection. This is the final stage of this process. The choice of implementing this directive was through primary legislation by an Act of the Oireachtas or through secondary legislation by regulations under the European Communities Act, 1972. The intention among most member states was to bring this directive through primary legislation. In the UK the legislation has been in place for the past four years. I am glad that the implementation of the directive in this country is by way of an Act of the Oireachtas.

The Bill raises many substantive issues, such as the shift in the burden of proof from the claimant to the producer and above all the definition of key terms, such as "product", "producer", "defect", "development risk", "damage" etc. Defining such concepts, in my view, is a primary function of the Oireachtas particularly as this legislation will have to be read in conjunction with existing law on tort and contract. It is important not to delay the introduction of legislation as producers will need time to adjust their operations to the new regime of strict liability, such as the negotiation of adequate insurance cover. In this regard it is noteworthy that most previous speakers have outlined their concerns about the whole question of insurance cover when this Bill is put in place. One of the main themes coming through all the contributions so far has been the question of the effect the new legislation will have on insurance premia and on the whole question of litigation by individuals for liabilities which they would claim were caused by defective products. I hope as a result of the implementation of the legislation we will not see a major increase in insurance costs and that if there are some increased costs we will not see the knock-on effect by the increase in the consumer price of products.

With certain limited exceptions the Bill applies to all products manufactured in or put into circulation in the Community. Primary agricultural products — that is products of the soil, stock farming and of fisheries — are specifically excluded from the scope of this Bill. This exemption would not include products which have undergone processing of an industrial nature. The producer is defined as the manufacturer of a finished product, component or raw material or anyone who represents himself as the producer, for example, of own brand products. Where the producer cannot be identified each supplier of the product will be treated as its producer unless the identity of the producer or any other person along the chain of supply is made known to the injured party. The importer of a product into the EC will be treated as its producer.

A product will be regarded as defective when it does not provide the safety which a person would be entitled to expect, taking all circumstances into account, including the presentation of the product, the use to which it would reasonably be expected that the product would be put and the time the product was put into circulation. Furthermore, a product would not be considered defective for the sole reason that a better product was subsequently put into circulation.

The Insurance Federation are confident that insurance cover will continue to be available, though at an increased cost, under the terms of this Bill. I have some concerns in this area that the actual increased cost, which the Insurance Federation have talked about, will not reflect itself in increased consumer prices. The Insurance Federation opposes derogation to exclude state of the art defence, as this would have a very significant effect on the cost of and in certain circumstances the availability of insurance cover. I am glad to note that certain defences will be open to a producer, such as where he did not put the product on the market, where the offending defect did not exist at the time it was circulated by him, where it was not possible scientifically or technically to detect the existence of the fault at that time or, in the case of the component or raw material, where the defect is due to a design fault in the final product in which it was used.

It is worth noting also that similar legislation has been in existence in the United Kingdom for the past four years. While it has brought significant benefits to consumers there, it has not had the negative impact on producers of goods that many commentators in the UK at that time predicted. As I have said previously, I hope the whole area of litigation will not be seen by the consumer as a new area to be tried out under this legislation. Perhaps the whole question of litigation is a matter for another item of legislation. In fairness to our own manufacturers, they also need some type of protection. I understand from the Minister that negotiations took place between the various interested bodies — the producers, the distributors and the retailers — and that to a certain extent adequate protections are provided in the Bill for the producer.

The Irish insurance companies will have to be monitored in the individual cases which they deem to settle outside the courts. There is a general perception out there that certain insurance companies are too quick to settle what the normal person would regard as spurious cases. I hope the Minister will monitor the effects of this legislation and if he finds there are abuses by various sectors of the community that he can through some other means act to stop this abuse of the system.

In conclusion, I wish this Bill a speedy passage into law. It has been around for a long time as the EC directive was first published in 1985 and we are now into 1991. I commend the representative bodies of industrialists for their endeavours to familiarise their members with the implications of this Bill. I endorse their conclusion that the best defence industry has against possible litigation and claims for compensation is to have proper quality control and adequate insurance cover.

I join with the sentiments of the Deputy from Carlow-Kilkenny in congratulating the Minister for bringing forward this legislation. However, my congratulations are reserved on the belated action of the Government in bringing forward this legislation which has been thrust upon us by the European Community. It is another example of the European Community giving a lead in legislating on this important consumer area where we should have given a lead many years ago. It is another of the European conventions that is finally being made part and parcel of our law.

This leads me to ask all members of the Cabinet to produce a comprehensive list of the number of European conventions to which Ireland has become a signatory State in the past number of years. By signing these documents we are committing ourselves to introducing and bringing up to date our domestic legislation, but we have not done that. This is another example of how far behind most European states our laws are, in conforming to EC conventions. The fact that eagerly awaited 1992 is literally around the corner should be a cause of serious concern to everybody in the House.

This is good legislation and is certainly to be welcomed. I wish it a speedy passage through the House. I hope that on Committee Stage some amendments will be taken on board by the Minister. There are not so much defects in as omissions from the Bill which I hope will be taken on board. Since the late seventies there has been a considerable amount of legislation which favours the consumer, and that is very important. Nevertheless, the consumer as a lobbyist or a clout figure in society is left very much to the rear.

Other influential groups in society — the professions, industry, farmers, employers and trade unions, groups which one could describe in the words of a former Minister for Finance as well heeled and articulate — are to the fore in presenting the views of their particular intrest group at national level. An example of that significant level of clout was the recently completed Programme for Economic and Social Progress. Regrettably the consumer has been left behind. The consumer and consumer interests are the forgotten group in society. Our consumer legislation and our interest in consumer affairs should be highlighted and updated so that the Irish consumer can exercise the same level of sophistication as the consumer in other European member states.

This legislation stems from European law, from a code of practice that is in operation in most European states. While it is welcome, it must be accompanied by other measures that would give the legislation far greater effect. Since 1979 we have had the Consumer Information Act, 1978, the appointment of the Director of Consumer Affairs and Fair Trade, the Sale of Goods and Supply of Services Act, 1980, the implementation of restrictive practices orders prohibiting anti-competitive practices and various consumer safety orders made under the Industrial Research and Standards Act of the early sixties. We have seen the setting up of the office of the Ombudsman and the appointment of the Data Protection Commissioner. We have also seen the introduction of a certain status for the consumer, but without effective remedies immediately available to the consumer, we are not doing the consumer a good service. While this Bill lines up behind the Consumer Information Act and the Sale of Goods and Supply of Services Act, the consumer will not be treated to the maximum benefits under the legislation without an effective system of redress.

What we are doing in this legislation is introducing the concept of strict liability, with liability or fault being apportioned without the necessity of proving the point, without arguing the point in a court forum. This is certainly welcome but the damage must be proved. In the event of there being a fundamental dispute as to liability, the only effective remedy will be through the courts. What distinguishes the Irish consumer from their European counterparts is the fact that we do not have a simplified code of practice in the form of a small claims court for dealing with a grievance or a complaint. That is the point I want to make. While welcoming the legislation there is a considerable gap in our laws that will not be closed until we have an inexpensive and effective remedy in the form of a small claims court.

In spite of all the legislation and structures that exist, there is still much that is unsatisfactory to the Irish consumer. That can be seen from the reports of the Director of Consumer Affairs and Fair Trade, an office that deals with 20,000 complaints per annum mainly of a small claims nature. When one considers that, together with the level of complaints received in the office of the Ombudsman, one can see the need for legislation like this and indeed, for our legislation to be more strictly enforced and operated on a much tighter basis than is the case at present.

I am surprised that the Bill was not brought forward in the context of a consumer package. It is extraordinary that, for example, the Director of Consumer Affairs and Fair Trade can deal with consumers' complaints, such as a mistake by a plumber or a problem with a local garageman about a defective car, but yet he cannot deal with a grievance, however justified, a person might have against Telecom Eireann or the ESB. Similarly, the Ombudsman is unduly restricted in carrying out his operations. He can deal with Telecom Eireann or An Post, but not with other State monopolies such as the ESB. These anomalies and weaknesses only add to the perception of indifference on the part of a State monopoly towards the consumer. I wonder has that point been addressed in this legislation? I dare say it has not. Judging from what the Minister has said, we are dealing merely with the supply and provision of products and not addressing ourselves to the provision and supply of a service.

This brings me to a point the Minister made — and I hope it was made in all sincerity — that there is a feeling that consumers' rights, rights of the general public, rights of the individual from a small claims/consumer/fair trade point of view, are anti-business and anti-progress and actually interfere with the running of a successful business. The Minister reiterated his view that that was not so. I hope that feeling will be hit on the head at the earliest opportunity. It is only when we have a comprehensive package of consumer rights and methods by which the consumer may gain redress fairly quickly that there will be top, high quality products that will lead to the survival of many of our industries, manufacturing and otherwise, after the 1992 changes.

The concept of strict liability is contained in the Bill and that is very welcome. It ensures that the producer is responsible whether or not he or she was responsible for the defect in a product that caused an injured party to suffer. That power is long overdue and I hope it will do something to reduce the need of the consumer to engage in litigation. However, the Bill does not go far enough in that regard.

We should seriously consider the irrelevance to the consumer of the court system and our legal structures. The fact that the Director of Consumer Affairs and Fair Trade deals with more than 20,000 complaints and inquiries regarding unsatisfactory products and services in any one year underlines the irrelevance of the court system to the consumer. I have to admit that in many ways the Irish legal system is anti-consumer, because of the tedious delays, the archaic procedures and, most important, because of the cost involved. The only redress available to the consumer is through the civil law, and that position will not change fundamentally as a result of the Bill. It may be argued that the Director of Consumer Affairs and Fair Trade has power to institute criminal proceedings against an offending party, but since that office was set up that has not proved to be very important. It is a weapon that is not used to any great effect by the director. I consider that the reason for that is that such an action will not help the consumer in any way, it will not compensate the victim. The fact that the Director of Consumer Affairs and Fair Trade has power to issue legal proceedings of a criminal nature is of little use to the consumer who needs an effective remedy for himself or herself.

The Director of Consumer Affairs and Fair Trade, the Office of the Fair Trade Commission and the Ombudsman should be given the resources annually to engage in something of a public relations campaign. It is amazing that years after the establishment of the Office of the Ombudsman in the mid-eighties many people who could well use its services do not know of its existence. That protects the Government because if people do not know about the office they will not use it. It would be fair to say that the Director of Consumer Affairs and Fair Trade and the Ombudsman have gone on public record — something not done lightly by either of those officials — to say that every year they are very much strapped for cash.

The 1984 annual report of the Director of Consumer Affairs stated:

In previous annual reports I referred to the fact that the present means of seeking redress through legal action through the courts are, in relation to the unsatisfactory goods and services, irrelevant to the vast majority of consumers in most cases of complaint. In too many cases the rights which the consumers undoubtedly have e.g. under the Sale of Goods Acts, are rights in theory only, since in many cases consumers are not able to, or do not feel able to, pursue these rights in practice through the legal action.

Those comments should not be taken lightly because they were not meant to be taken lightly. The report underlines the feeling reflected by the consumer that the legal system is simply not providing redress in the area of consumer rights or liability for defective goods and products.

The Minister for Industry and Commerce, whose name is on the back of the Bill, put forward the idea of a small claims court on several occasions. I did not give the document too much attention at the time, but I remember that when the Minister, the leader of the Progressive Democrats was in Opposition he was anxious to set himself up as a champion of the consumer. That idea was certainly contained in some of the party's election documents. Since Deputy O'Malley became Minister for Industry and Commerce he has not been so vocal in that regard. I should have thought that the Minister would use this opportunity of extending the law for consumers to put into practice the views he expressed when he was leader of a party in Opposition not so long ago.

The idea of a small claims court has received sufficient amplification from interested parties throughout the past decade that its establishment would not present a great problem. The Minister for Justice, who would have certain responsibilities in that regard, is against the concept of a small claims court, and said that the District Court fulfils that role. The District Court does not fulfil that role because of the costs involved, the delays involved, and the formal procedures attached to the office of the District Court. We should certainly consider what other jurisdictions have done. That is what is being done in the debate on the Bill, but we also need to consider the whole concept of a small claims court in the context of what other European states have done quite successfully.

An argument put forward against the idea of a small claims court is that it would be used as a vehicle against the consumer by debt collection agencies. That argument has been bandied about for quite some time, but the simple answer is that those people would be excluded from having an audience in a small claims court. The only people who could bring actions would be members of the public in relation to a particular grievance or small claim. Debt collection agencies and trade creditors would not be allowed to use the services of that court.

Another argument put forward against the concept of a small claims tribunal or court is that it would be unconstitutional. That argument simply does not hold water. There are sufficient precedents in the law to rule out that complaint. I point to the Employment Appeals Tribunal, An Bord Pleanála and the Labour Court as bodies of a quasi judicial nature that were set up without any constitutional impediment or any outcry on behalf of vested interests that such establishments were contrary to Article 34 of the Constitution.

If the House is serious about protecting the consumer this Bill will have to be accompanied by legislation to protect the consumer, to give an element of redress to the consumer that does not exist. I cannot understand, nor has the Minister fully explained, why primary agricultural products which have not undergone initial processing are exempt from this legislation. When one considers the Irish economy preparing for the fall-out from 1992, primary agricultural products from this State are of fundamental importance. If we are going to exclude them from legislation we are not doing our green quality image any good. I hope the Minister will elaborate on his reservations in this area.

Section 3 is unbelievable in the context of consumer rights in that it excludes any claim under the sum of £350.

Debate adjourned.