On Section 2 would the Minister give us an idea of the kind of person he contemplates should be on the fair trading commission to interpret Schedule 2?
Restrictive Trade Practices Bill, 1952—Committee Stage.
Section 1 agreed to.
SECTION 2.
Question proposed: "That Section 2 stand part of the Bill."
Persons of mature judgment, wide experience and unquestionable integrity.
Something more specific, surely?
That is all very fine, but will they not want to be of extremely mature judgment and very wide experience to interpret "unjust", "unfair", "unreasonable", "contrary to public interest", and "without just cause"? Does the Minister contemplate that civil servants or accountants would be suitable, or does he think that nobody except business people would be suitable? Surely he must have some kind of person in his mind who would do this difficult and, in this country, new job?
Is it intended to have civil servants on this commission?
I do not rule out the possibility of civil servants being considered for membership of the body, not in a part-time capacity but seconded from their Civil Service duties for that purpose. In selecting members for a commission of this kind it is difficult to get people who are widely experienced and at the same time not so involved in business as to be incapable of being detached from it. The difficulty I expect to encounter in inducing people to act upon this commission is that those who would be good enough for it will, in the main, be already key men in existing commercial organisations. It is because I realise that difficulty may exist that I think it may be necessary to go to people who are either at present employed by the State as civil servants or who are in the service of existing statutory organisations from which they could be released even with some difficulty.
If you include civil servants, those who are in what is ordinarily regarded as the Civil Service or those who are in statutory organisations, that does give you certainly a rather wide choice together with what the Minister has in mind—persons with a wide experience of business. That leads on to the other question of how much this fair trading commission would be expected to cost and whether the cost would be entirely borne on the Vote or whether there would be any scheme for providing its expenses. As far as I can see from the Bill, there is not. For example, would it be possible to get suitable people with the wide experience and with the objective approach and personal integrity which the Minister and all of us desire, for anything less than the salary of a High Court judge?
The cost would be borne entirely on the Vote, and so long as members have to serve in a whole-time capacity, substantial remuneration will have to be paid.
Will the remainder of the staff be civil servants?
Yes.
Could the Minister give us some idea of the approximate cost of the commission?
No; I cannot give that at the moment.
Question put and agreed to.
SECTION 3.
Question proposed: "That Section 3 stand part of the Bill."
Section 3 provides that such practices shall be considered as unfair trade practices as are set out in the Second Schedule. I submit that there is no such list of unfair trade practices set out in the Second Schedule. What is in the Second Schedule is a list of matters which might reasonably be taken into consideration if one were considering whether or not there were trade practices which might be regarded as unfair practices. Nobody would call that a list of unfair trade practices.
This is a list of practices which are known to be in operation in trades and which are regarded as unfair and undesirable.
There is no list of practices set out there at all.
Surely there is?
I do not think so. I would like the Minister to show where there is a list of trade practices contained in the Second Schedule. I have no interest in the matter beyond seeing that if this is going to be passed there should be some efficacy in it. I do not think that this Second Schedule contains a list of unfair trade practices. They are certainly not contained in the Second Schedule, and a person who does not know much about it would not see in that Schedule whether there is anything which he is doing that is wrong. If people are doing something that is wrong, it ought to be shown in the Second Schedule, but there is nothing in the Schedule to show what, in fact, in the way of restrictive trade practices, is unfair, unjust and unnecessary.
Would Senator Hayes be prepared to accept the word "adumbration" instead of "list"?
Knowing something about languages, I would not be prepared to accept that.
To my mind the Second Schedule is all-embracing, and if the Minister was to do what Senator Hayes suggests, it would remove the object of the Bill. I think that the Second Schedule is wide and all-embracing, and will catch any fish that come under it.
I do not object to fish being caught, if they should be caught, and I agree with the suggestion of Senator Colgan that the Schedule is all-embracing. The point is that Section 3 says that in the Second Schedule there is a list of practices which are unfair and unjust, but I do not think that there is any such list in the Second Schedule.
It is a potential list.
I would say that a potential bank-note is no good to me and a potential list is not much good to anybody.
Is this section not prejudging the work which the commission should have to do by setting out what are unfair trade practices? Surely that is work on which the commission should have to decide?
I do not think that there is much objection to the Second Schedule. The Minister explained the matter very fully when he stated that a great many practices had been referred to him which he regarded as suspicious and which required investigation by a commission. Now, it will be the function of the commission to inquire into such practices, and I do not think that the point made by Senator Hayes will make much difference. So far as I am concerned, I do not think there can possibly be any objection to the Second Schedule, which seems to be quite satisfactory and, to my mind, I do not think that it really does anything.
When I had this Bill drafted originally, there was no such list in it, and one of the criticisms expressed in the Dáil was that it did not give any guidance to the commission as to the type of practices they were to regard as undesirable. In my Second Reading speech I indicated that I had not decided in advance what trade practices or restrictive arrangements were unfair or prejudicial to the public interest. It was argued in the Dáil, however, that the commission, for guidance, should have a list of the practices which were to be regarded as unfair and this Second Schedule was brought in as an amendment to meet that criticism.
It is intended merely for the guidance of the commission as to the type of practices which it should be their aim to eliminate. As Senator Colgan has pointed out, the Schedule is fairly wide and cannot be regarded as an attempt to influence in any way the commission or its power of investigation or inquiry. I am merely meeting the criticism expressed in the Dáil by putting in this list. I am not particularly addicted to the list, if anybody wants to have it removed.
I only want to say that if there are evil-doers I would welcome anything which would punish those evil-doers, but I do not think that this Second Schedule contains a list of unfair trade practices and I have no other motive in raising this matter on this section. Senator Colgan thinks the Schedule means everything. Senator Douglas, on the other side, thinks it means nothing. That would seem to indicate that when I say it is not a list of unfair practices, I am right. However, I will not argue it any more, beyond saying that certainly by no stretch of language or by no straining of the meaning of words could it be said that this Second Schedule is a list of unfair practices. It is no such thing.
I may be very stupid, but I must confess that the Second Schedule to which reference is made does seem to me, as an ordinary legislator without any deep knowledge of language, to contain a list of practices. I think it will be agreed that it is a list of something and to my reading the phrase "any measures which are in unreasonable restrain of trade" refers to an undesirable practice. Again, "any measures which secure or are likely to secure substantial or complete control of the supply or distribution of goods or any class of goods unfairly or contrary to the public interest"—that is an indication that that is an unfair trading practice. I think the Schedule is valuable in so far as it does give certain guidance to the commission as to what should be their approach regarding the investigations they may be called upon to make.
I know even less than Senator Hearne or Senator Douglas or Senator Hayes or Senator Colgan about this matter, but surely the would-be evil-doer is entitled to know what the law says is wrong. That is what I think about it. Suppose you take (a) "——have or are likely to have the effect of unreasonably limiting or restraining free and fair competition". That is stated to be a practice which is going to be against the law. But will that not be a matter of opinion? The fair trade commission may take one point of view about it and the trader another. If the trader should go into court and plead ignorance about the matter, I do not know what the court will say, but until something more specific is laid down as being against the law, it will be very difficult to interpret.
The fair trade commission's decision must be strengthened by an Act of Parliament before direction can be given.
This brings up the whole problem of the importance of a qualifying attitude throughout the Bill. I know of no responsible individual or body of opinion which is hostile to the Minister bringing in the Bill. We are all agreed that unfair, unreasonable and unjust practices in the economy of the State shall not be acquiesced in by the citizens. But how is this as yet unknown body of men who have yet to be set up going to define all the matters arising out of the Bill?
When I heard Senator Hayes talking, I thought at first that he was technically right, but reading it over again I am satisfied that he is not. Take (a) "——any measures which have or are likely to have the effect of unreasonably limiting or restraining free or fair competition". That can be taken as being a list of things against which the Bill is aimed. If the Minister were to give an actual list of what is to be regarded as undesirable practices, I suggest it would be advertising what people may possibly do. If he were to start at all, he would have to give a very big list and name things that probably many people never thought of. He would be just putting ideas into their heads.
Question put and agreed to.
Sections 4 and 5 agreed to.
SECTION 6.
I move amendment No. 1:—
To delete all words after "if" in line 2, and substitute "they are satisfied after inquiry that any of the rules are not being observed they shall report to the Minister and state whether the failure to observe the rule or rules is general or confined to a few persons engaged in the distribution of goods to which the rule or rules apply.
I put this amendment down, not because I am satisfied with the wording of it, but because I want to raise some points on the section, which seems to me to be rather vague. Contrary to some of my colleagues, I do not think there are any evil-doers likely to come under this Bill at all. It is proposed to make fair trading rules, but they will not have the force of law, and the breaking of them from the legal point of view will not be evil doing. As I made clear on the Second Stage, I view with considerable misgivings this preparation of fair trading rules, but the Bill is going to be passed and it is important that if they are made, we should know where we are.
It is not clear what exactly the report is to be. I think the report under Section 6 does not have to be a public report. Having read all the sections I am not clear. Unless it is made clear to the contrary it could be that it would come in as a report of an inquiry, because it is only after some measure of inquiry that they can ascertain whether or not the fair trading rules which they will have made are in operation. Most of us know pretty well that in every trade almost everybody has got to keep the rules or nobody keeps them. There may be cases in certain distributive trades in which it would be silly to worry simply because one or two huckster shops are breaking the rules. On the other hand, if one or two responsible shops ignore the rules it would probably be impossible to operate them.
The section should be made more explicit. It will not be of much use for the Minister to be informed that the rules are not observed. He will want to know are they generally observed or are they being broken by one or two or by powerful interests, thus making them impracticable. That information would enable him to judge whether or not to take any action. I am approaching this matter from the point of view that I am sceptical of the value of these rules. If they are going to be made, the greatest possible care should be taken to see they are dealt with properly and do not become a complete farce. The Minister would be wise, first, to make it more explicit what kind of report he is to get and, secondly, to clear up the question as to whether it is a report on which he can act or not as he thinks fit or whether it is to be like the report of an inquiry under Section 7 on which he must act.
A report under Section 6 is the same in form as a report under Section 7, and is dealt with in the same way. Section 8 starts off with the words: "A report made by the commission under Section 6 or 7" shall be of a certain character and shall be published to the Oireachtas and shall be dealt with as set out in sub-section (2) of that section. There will be no difference whatever between a report under Section 6 and a report under Section 7. If voluntary fair trading rules are made on the request of any trade association and if the members of that association subsequently fail to adhere to those rules, and if the commission on investigation find that to be the case, then without any further formalities on the part of the commission it can report to the Minister and set in motion the machinery by which an Order may be made and legislation passed to enforce those rules on those who are in the trade.
Will it not be necessary to have an inquiry?
No. The inquiry will be held before the fair trading rules are prepared. Those who decide to proceed under Section 4 and arrange to have their existing rules examined by the commission and amended in accordance with the commission's recommendations will not be subject to any further action under this Bill so long as they keep those rules. If they fail to keep them, however, they are then liable without further inquiry to have an Order made by the Minister under Section 8.
The Minister refers to members of an association asking for rules applying to the association. That I quite understand, but it does not seem to me that it is either right or proper that where the rules become the law they are only applicable to members of the association.
No. It applies only to the trade.
Then I suggest there should be an inquiry. I speak with some trading experience and I am trying to make serious points, not small ones. My point is that if the commission, as the result of an inquiry on proposals by an association, decides to make rules for that association, well and good; but if they are not binding they may affect persons who may be outside the association. The Minister says they will apply to the association. I think they will have to apply outside.
I think it is extremely important that where a group claim to be representing a trade and an association and there is a number of people outside, the outside people, before an Order is made, ought to have an equal chance of saying what their interest is and of giving their views about the matter, just as much as if they were members of the association. That is almost essential to fair trade.
I think there is another very important point lying under this section, that where any body at present existing voluntarily submits its present rules for approval or otherwise by the fair trade commission—I hope I am not misunderstanding the Minister's remarks in the Dáil, where it seemed to me he implied that the moment the association voluntarily sought approval for existing rules it deprived itself of certain rights it had if it did not so voluntarily submit its rules—at that stage apparently the matter would pass out of their hands. If the commission decided the rules needed amendment in any form the commission would submit the amended rules back to the association, which would have to accept them and would have no recourse to the machinery provided in the Bill. That is to say, any association that voluntarily submits rules would deprive itself of any process or machinery which otherwise would be available to them.
If a trade association applies under Section 4 for the preparation of rules, then it puts itself in the position that it either voluntarily abides by the rules so prepared by the commission or is liable to have those rules made law under Section 8. Before the rules can be made by the commission notice must be given, in whatever manner the commission thinks fit, to everybody who may be interested in the nature of the rules; and the commission will consider any representations it receives from such people before publishing the rules. The position will not be that a body could go to the commission and get the commission to publish rules and then do nothing more about it. It could not refuse to apply the rules which the commission recommends. If they fail to conform to the fair trading rules which they themselves asked the commission to prepare, then those rules can be, through the procedure in Section 8, embodied in an Order and made the subject of legislation. That is the penalty which members of such a trade would incur if they set in force the machinery for the preparation of rules and then refuse them or fail to conform to them.
This appears to me to be a case where they would be better off not to volunteer their rules but to wait until rules were suggested —and that seems to be running counter to the whole spirit of the Bill.
The Minister does not seem to have explained a genuine difficulty. There is the case in quite a few instances where there is a trade association and also persons outside it. The association cannot force its members to carry out the rules, but it can do a great deal to get them carried out, yet it can do nothing with the people who refuse to join it. I am inclined to think my amendment is better than I thought it was. There should be some definite inquiry, if there is going to be an Order made under Section 9 as the result of a report. We should know whether this is the result of one or two persons not carrying out the rules or whether they have not been observed generally.
One of the factors which the commission takes into account under Section 4 is the representative character of the association applying for these rules. In any event, it seems to me that the amendment is unnecessary. I do not think Senator Douglas appreciates the fact that a report under Section 6 has to conform to the requirements of Section 8. I cannot see any commission reporting in accordance with sub-section (1) of Section 8 without dealing with the very point whether the non-observance of the rules is general or only an offence by one or two firms.
The Minister stated that a report under Section 6 would be made public.
Yes.
I do not think that is in the Bill clearly.
It is clear.
It is clear from the Bill that a report under Section 7 must be made public.
There is no difference between a report under Section 6 and a report under Section 7. The wording of Section 8 is quite clear in regard to that.
If you come to sub-section (2) of Section 8, you find that if the commission are of opinion that the Minister should make an Order under Section 9, they shall recommend accordingly and the Minister will lay a copy of that report before each House of the Oireachtas. But that is an Order in relation to restrictive practices and does not go back to deal with an Order in regard to fair trading rules.
It does. Sub-section (1) of Section 8 is quite clear. It says that a report made by the commission under Section 6 or 7 shall contain certain material and shall also contain the commission's recommendation as under Section 9 or not.
I am quite satisfied, now that the Minister has said that, but I repeat that the Bill is not too clear.
The Minister said the commission shall cause to be published notice of intention to make fair trading rules, thereby giving an opportunity to any person desiring to make representations. Supposing that people make representations and the representations are of no avail, is there any other appeal, is the commission's decision final and binding, or can anyone come in and say that the commission has made a mistake?
That question does not arise on this amendment.
The chief point of difference between proceeding under Section 4 to get voluntary rules prepared, and proceeding under Section 7, is that Section 4 avoids the public inquiry which Section 7 involves.
I understood that Section 8 applied to reports made under Section 7, but the amendment moved by Senator Douglas wants the report to state whether the breach of the rules is general or applies to only a small number of people. The Minister said that that was covered by Section 8 but I do not find it there.
What I said was that no commission could possibly report in accordance with paragraphs (a), (b), (c) and (d) of sub-section (1) of Section 8 without covering that point.
Without saying whether the breach was general or done by a small number of people?
Yes.
I do not think that is absolutely so. That is merely an expression of opinion by the Minister. I would go this distance in agreement with him. I do not know how the Minister could pass any Order made by him into law, without telling both Houses of the Oireachtas whether the evil he was endeavouring to cope with was confined to a small number of people or was general in a particular trade.
That is so. The commission dealing with conditions in say the drapery trade for which fair trading rules have been made on the request of some association of drapery traders will not recommend the making of an Order by the Minister and the enactment of legislation by the Oireachtas, if they find that merely one or two huckster shops, as Senator Douglas described them, are not conforming to these rules. It is inconceivable that the commission would act in that irresponsible way, nor can I imagine circumstances in which fair trading rules of the kind the commission would prepare were being observed by all the important firms in the trade and not being observed by those in a small way of business. The restrictive practices against which the Bill is aimed will surely be practices by the major firms in any trade and not the smaller businesses.
Suppose there is no association covering these small firms? There are plenty of trades which have not got an association at all and an association, as such, can never request the making of fair trading rules, because there is no association governing them.
If Section 4 cannot be operated for any trade by reason of a situation of that kind and if there are restrictive practices in that trade, the action will have to be under Section 7.
I do not propose to press the amendment, but the illustration the Minister gave of one particular trade is the sort of thing that was in my mind. So far as I know, there are between 150 and 200—I am not tying myself to those figures—in one trade who are members of the association which is fairly representative of the trade, the total membership of which is about 2,000. There again I am not tied to exact figures, but I am not very far wrong. That gives an illustration of the difficulty in my mind. The Minister also said that if you get fair trading rules, you avoid an inquiry. I agree, and I think that is reasonable, but, if the trading rules will not work, I am not convinced that you should then have a report without an inquiry. It might be much fairer to everyone concerned that there should be an inquiry. I am not pressing the amendment, but I am suggesting that the Minister between now and Report Stage should look into it and see whether there is not something which requires amendment.
Amendment, by leave, withdrawn.
Section 6 agreed to.
SECTION 7.
I move amendment No. 2:—
In sub-section (1), line 5, to delete "one" and substitute "two".
Section 7 deals with inquiries—inquiries which may be initiated by the commission or carried out at the request of the Minister. It applies to inquiries into the supply and distribution of any kind of goods and is, therefore, a particularly widely-drafted section. An inquiry could be of almost any character about anything which is being sold in a shop apparently, or even manufactured in a factory, because "supply and distribution", I take it, goes back to factories. Sub-section (1) provides that an inquiry may be held by one or more members, which means that in particular circumstances an inquiry could be held by one member. I suggest that, as this is a new Bill and for various other reasons, it should be not "one or more members", but "two or more members".
The reasons I give for that are these: the inquiry is one which will be held without rules, and the only guidance given to the commission is the guidance contained in Schedule II, of which I have already expressed my view. The one person who will conduct the inquiry will be called upon to interpret Schedule II, that is, to interpret a number of adjectives and adverbs, in the interpretation of which he will get no assistance anywhere. The decision and the report to the Minister will not depend on a set of facts or on any known principles, practices or usages of law. They will depend entirely upon how the investigator regards a particular set of facts, upon his opinion with regard to the words "unjust", "unfair", "the public interest", and so on. Since everything hinges upon the opinion of the investigator, it seems to me that it would be desirable that there should be more than one from the very beginning, and that no inquiry should be carried out unless more than one person is engaged in it. Particularly is that so in the beginning and particularly so here, where no very clear rules are laid down and where precedents will have to be accumulated and practices laid down.
For that reason, it would be better if the investigation were carried out by two people and the report then made to the Minister. It would strengthen the decision; it would be fairer to all the people whose affairs are being investigated; and it would be fairer to the persons carrying out the investigation. It would strengthen the report made to the Minister and, if the Minister desired to act upon it, it would strengthen his hand in putting legislation, based upon the Order, through both Houses of the Oireachtas.
It should be quite clear that the report will be a report of the commission as a whole and not of any one or two members who may have conducted the inquiry in a particular case. Even though an inquiry may be conducted in a particular case, if the commission authorises, by one of its members, the report and recommendation of the commission will be signed by all the members and not merely by the one member who held the inquiry. I feel that it is unwise to tie up a body of this kind with a whole series of statutory rules. It is far better to proceed on the assumption that it is going to be composed of intelligent people who can be trusted to devise their own procedure so as to get the best and fairest results.
One of the arguments against the particular line of action the Bill contemplates against restrictive practices is that it will operate too slowly. I have been conscious of the validity of that criticism and have been anxious so to frame the Bill that more expeditious results can be secured than have, in fact, been realised under the British Monopolies Commission, which is a somewhat similar body operating in a neighbouring country. In Britain, it is obvious that there is considerable public disquietude as a result of the slowness with which that commission works and reference to that commission was made during the debate in the Dáil.
When a similar amendment was submitted in the Dáil, I said that in my view the commission would conduct an inquiry with the whole of its members in connection with any commodity sold by a large number of firms or in relation to which rules would have very definite results in the practice of trading and on the public generally. I contemplate from the nature of the complaints which I have received in connection with restrictive practices that there will be some cases of quite trivial importance affecting only the interests of a comparatively small group of traders who have been, say, denied the supply of goods on wholesale terms even though they claim to be bona fide wholesalers or in some other way to be prejudiced in their trading interests by the practices of the main distributors.
It is conceivably possible that the commission would have two or three inquiries of that kind proceeding simultaneously without any undue risk, having regard to the general provisions of the Bill. Bear in mind that, following such an inquiry, nothing can happen except the commission as a whole makes a report to the Minister which recommends action should be taken by him, a recommendation with which the Minister and the Oireachtas agree. It is only if the commission, the Minister and the Oireachtas agree that action is necessary that action will be taken. I doubt whether it would be possible to have a number of inquiries proceeding simultaneously with two or three members of the commission on each inquiry. We do not require the commission to hold inquiries through one member only. We are empowering the commission to do what in its wisdom it considers to be fair and reasonable in the circumstances of the case.
I think the Minister has really made a mistake, especially in regard to the first year or two, by insisting on the provision that an inquiry may be held by one person. From what I can gather outside the House that, as much as anything else in the Bill, causes uneasiness. The Minister thinks that time may be saved and that the danger of slowing up the whole operation of the commission would be avoided. In the second place, the Minister thinks that trivial matters can be dealt with by an inquiry held by one person. I hold a rather different point of view. I did not put down this amendment myself because of the Minister's attitude when he spoke in the Dáil, but I still think he is making a mistake. If clearly defined legal issues were being inquired into, then an experienced person making the inquiries might possibly be as good as two, but in this case we are asking that a judgment be formed as to what is reasonable or fair or what is right or wrong. I suggest that the more experienced and the more able a man is, the more likely is he to have already formed opinions. It is impossible for a person by himself—I do not care who he may be—to be impartial in an inquiry on a matter on which his own opinions are formed beforehand as to what is right or wrong. He may modify those opinions by what he hears.
I am rather uneasy about the idea that it is in minor matters it is proposed to have a one-man inquiry. I would be inclined to say that it would be in regard to the minor matter that you would want two as a safeguard. An error of judgment might lead to a serious injustice. Where, as mentioned by the Minister, you have a big trade such as the distribution of petrol, I do not think it matters whether you have two members or three members, because there will be so much public interest in the matter that there will not be the slightest danger. I would, however, be afraid of an inquiry into an obscure trade, a trade which would be of extremely great importance to the people concerned but one in which you would have very little public interest. I would urge the Minister to think twice as to whether this provision is really wise or not.
Could the Minister not insert a proviso that the normal procedure would be to have two or three but after consultation with the Minister there might be one only? The Minister should make it clear that it was not intended to have one as the normal procedure.
I do not think the holding of an inquiry by one member will be the normal procedure. In this amendment it is sought to tie up the commission and give it no discretion. I want to give this commission discretion. Its members will be as conscious as anybody here of the degree of public interest in any inquiry that they undertake. Furthermore, the report which will come to the Minister and be published to the Dáil will be the report of the whole commission and not the report of a single member. One member may preside at the public sittings, ask the questions and direct the queries that ought to be answered. It is on the basis of the facts so ascertained that the commission makes their recommendations. The report will be from the whole commission and not from any one of its members. We could put a whole lot of rules and regulations in the Bill but I think it would be an undesirable course. I think it is better to give the commission power to do the job as expeditiously as they can. In the long run nothing can happen affecting any trade unless an Act is passed through the Oireachtas. That is the ultimate safeguard.
I think there is a lot in what Senator Douglas said a minute ago in regard to the danger of these inquiries being held by one person only. The Minister says that the right to use one person would probably not be very much utilised. Having regard to our experience in connection with the working of other bodies that were set up, we know, if the work becomes heavy, that the tendency is to delegate the inquiries to one person. We know that from the working of the Labour Court and these other bodies. Sometimes they are so busy that they are glad to get anyone to do the job. The Minister said that the commission as a whole would take responsibility for the whole thing but their responsibility consists only in signing it. Two members should be the minimum. The Minister might sanction the use of two.
That would involve the Minister making some inquiries.
A lot of other people are perturbed about this. We feel this is a very obscure sort of thing. Nobody knows what our duties are to be. If the Bill defined restrictive practices and gave a clearer picture, I do not think I would be worried about one. If one person is going to inquire into the matter it may have very serious repercussions on the business community.
Only if a Bill is passed here.
I know that, but what I am frightened about is the tendency to use one person only, and the Bill provides for one person. I feel that they will be human, and lean strongly on that.
I appeal to the Minister to give very serious consideration to the suggestion made by Senator Hayes, because this is the centre-piece of the whole Bill. If the Minister carries on his present intention of having the inquiry held by one member nothing, of course, can happen until it is ultimately approved by the Oireachtas, but the result of the inquiry depends on the interpretation of one individual.
No, no—on the interpretation of the whole commission.
Excuse me, the interpretation of one individual, inasmuch as the members of the commission will interpret on his interpretation what the conditions are. How otherwise can the inquiry be interpreted? If the inquiry is held by one individual into the conditions applying in a particular trade, how otherwise can the members of the commission come to a conclusion?
Through the fact ascertained by the inquiry.
But they can be misinterpreted and the other members on that misinterpretation are trying to serve the interests of justice. The Minister wants expendition, but to my mind it is much more important that the interests of justice would be served than that the decision be taken quickly. Whatever possibility there is of two people making a mistake, there is twice the possibility of this happening where one person is holding the inquiry. Then this can have serious repercussions on trades and associations once the Order is made by both Houses of the Oireachtas.
It seems to me that the question of time is paramount in this matter. If the amendment is accepted it means that the commission can only proceed at half the speed since two members will be required to hold an inquiry. If it is accepted we would have to increase the number on the commission. Speaking from the point of view of a consumer and buyer, I want the commission to work as fast as possible and I do not think the amendment is desirable, even if it means the commission is to be increased.
It would seem much better to entrust the responsibility to two members. I notice that this is going to be a very small commission. The commission will probably number more than three, with the possibility of five, and that may show to some extent why a problem of this kind has been allocated to one person rather than two. If the commission comprises three members you will then have to take into consideration the practicability of the work of the commission itself. If the commission was larger it would not be unreasonable that two should comprise the minimum personnel.
The present intention is that the commission would be composed of three members and what Senator McMullen has just said is relevant to this consideration because you could not have two inquiries proceeding without some member of the commission involved in both, unless, of course, there were temporary members appointed.
I feel that the fears which have been expressed in relation to these inquiries are very largely groundless and I cannot conceive circumstances under which any commission which may be appointed will commit itself to a report which will be published for the Oireachtas and upon which legislative action may be taken, without being satisfied that all the facts have been ascertained through the inquiry which preceded the consideration of the report and if the collection of facts was in any way prejudiced by the fact that the inquiry was held by one member, without having some re-hearing or some other effort made to get all the facts collected.
It is important that people who have made complaints about the operation of restrictive trade practices which are detrimental to the interests of the public should feel that there is a reasonable prospect of their complaints being investigated in the foreseeable future. It is true that the commission in its first year or two will have far more inquiries to undertake than it will have time to do, but if they proceed by holding all inquiries with all the members of the commission sitting, then its output would be slower than the public would prefer.
The nearest illustration I can give to a similar type of body acting in the way I contemplate is the Industrial Development Authority. When that body was set up originally it was intended to direct its attention to the promotion of industrial expansion, but after it had been established it had delegated to it very large numbers of administrative duties previously discharged by the Department of Industry and Commerce—the examination of applications for amendment of tariffs, the granting of import and export licences, the operation of the Trade Loans (Guarantee) Act and a number of other functions of that kind, and it could proceed only in the way I contemplate this commission can proceed, by giving to individual members a particular group of industries to investigate or duties to perform. Then their reports or recommendations come from the body as a whole and have to be approved by all its members before they can be made. That approval is based upon the facts ascertained by one member conducting the investigation.
I do not see any difficulty in leaving it to the discretion of the commission to have the actual inquiry conducted by one of its members. Even though the commission must examine facts elicited and base its recommendation upon these facts, and even though no recommendation is made unless the whole commission support it, I think that the commission will almost certainly proceed to hold inquiries with the whole of its membership participating where matters of general interest or wide importance are involved. I do not want to preclude it from proceeding on the basis of inquiry by one member except where hardship, unfairness or ill-results would follow, and that brings us to the question whether we should give or deny the commission that discretion. I think that we should seek to leave that discretion with them.
I would ask the Minister to deal with this point now. In the First Schedule the powers of the fair trade commission are set out, and in Section 1 sub-section (1) the Minister may appoint temporary members apart from substitutes for permanent members who are ill and unable to act. As Senator McMullen has raised the point, could the Minister say if he means to have three? Would it be correct to tell us now what the purpose of sub-section (1) is concerning temporary membership?
The power to appoint temporary members is there to meet a situation where the commission informs the Minister it is about to engage upon a particular inquiry where a technical question will arise, and they would like to have available to them people with a technical knowledge of the trade concerned. I do not contemplate that that power of appointment will be utilised apart from such circumstances where some intricate problem of a technical character is likely to face the commission, and upon which they would like to have the services of a technical assessor available to them.
I have listened to this debate as objectively as is possible, and I confess that I think the case was so strong in favour of this amendment that the Minister ought to accept it. It is fundamental to the Bill that the trading community in this country should feel that if there is to be an investigation about the way in which they are to conduct their businesses, justice would be done. That is very important in a case such as this. I do not think that I can be as enthusiastic as Senator Stanford appears to be about the benefits that are going to accrue to the consuming public as a result of this Bill. I certainly do not feel that way about it.
There seems to be some slight adjustment needed in this whole matter, and I think that what is going to be accomplished through this Bill will be of a very trifling nature for the whole community. I have no doubt whatever that the trading community are bound to be disturbed by the passage of a Bill of this type, and it is quite understandable that they should feel that way. They have no way of finding out what is to be investigated by the commission and, when they look at this Bill, they see nothing specific in it which would tell them whether what they are doing is right or wrong.
How is this going to be determined? You are going to have this commission and one member may be given the assignment to go out after reports have been received from nosey-parkers on a line of investigation. You will, no doubt, have a lot of people making various types of reports because there are undoubtedly a great number of people in this city and in the country who are prepared to go prying into other people's affairs while neglecting their own homes and to make reports on how other people's business are being run. They are doing that for the most part to make themselves appear important and to try to get their names in the papers. I think that there should be some provision under this Bill to prosecute people who create a public mischief by making frivolous or false reports.
The Bill is not as simple as it appears to be, and I believe that, with regard to it, the Oireachtas ought to behave with caution and the Minister himself ought to behave with caution. I am sure there are not many people in the country indulging in unfair trade practices, and I am sure that the Minister does not believe that there are many either. I suggest to the Minister that if there is to be an investigation or an inquiry, it is important that the court should be so constituted, and that the commission itself should be so constituted that the mind of the commission will be disclosed. If you have only one person sitting at an inquiry it is difficult, even with all the facts present, to get that decision which you might get with a greater number. Facts are not always interpreted in the same way by any two persons. Each would have a slightly different approach to certain matters, and I think we could find that, even with the three business people who have spoken here, Senators Summerfield, McGuire and Douglas, the approach of each might be quite different. We should take every precaution to see that any decisions taken are fair and just and to preserve the good name of our trading community. From the point of view of even the Minister himself, who is responsible in the last analysis for this measure and for anything that would have to be done following a report of the commission, there is an inviolable case for this amendment.
The whole question in the amendment is whether the commission should be given discretion in the light of what is fair and reasonable to hold an inquiry with one member instead of two. Anything that Senator Baxter has said would appear to be quite irrelevant to that issue of whether or not we are going to give the commission this discretion. Quite a number of amendments were moved in the Dáil, many of which I accepted because they did not seem to make much difference or to be of any great importance in regard to the general character of the scheme. This one amendment I resisted on the grounds that it was undesirable to deprive the commission of discretion in these matters.
Does the Minister not consider it important from the point of view of the Bill and of the commission that we should create in the minds of the trading community a sense of confidence that justice will be done under the commission?
You could suggest an amendment to provide that the members should not appear in public without Senator Baxter holding them by the hands, but such an amendment would be based on the assumption that we are going to appoint irresponsible people. We are providing for responsible people to carry out this work and they are not going to do anything that would prejudice the case made in their report or which would upset public confidence in their competence and impartiality.
The only thing I want to say, having listened to the arguments against this amendment, is that it seems to me that speed and money seem to be the guiding factors in adhering to this principle that there should be only one person used in an inquiry. I think that is wrong. It is wrong to be looking for speed at this stage. The machinery of the Bill will be there for good, and if we are careless there are going to be injustices. It may well be, as I have said previously, that the Minister might not be there at a later stage and somebody very careless may be in his position, and in those circumstances I think that more than one man should be charged with an inquiry. Even if it was necessary to have as many as five I think we should have five rather than run the risk of having mistakes made in the interest of speed and economy.
Is it not a fact that in our law courts you may have some cases heard by several judges sitting on a bench and in others you will have only one?
They are interpreting the law.
I think that it is a perfect analogy in this case. I cannot see, if the members of the commission are honourable and responsible men, why the judgment of one will not be accepted as well as the judgment of two or three. This quibbling about the number of members in my view will delay the efficacious implementation of the Bill and is unnecessary and undesirable.
Perhaps I could conclude the debate by saying that it has been very interesting and satisfying in many ways. I can see some of the Minister's points of view. The Minister is at any rate consistent in character. He has certain points of view and he holds to them very tenaciously and argues them very convincingly. But, I am surprised that Professor Stanford swallowed the State doctrine, hook line and sinker and has become a streamlined totalitarian. Let us appoint the commission, he says, without delay and work as fast as possible.
Of course I said nothing of the kind.
Then when somebody says what he has said, he wants to say that in fact he said something else. However, I do not mind what he said. I would like to hear the Minister's answer to the question raised with regard to temporary members. I thought that it might be that temporary people would be appointed with a knowledge of particular trades. The debate on the whole has been a good debate and I am not going to press my own amendment. I am not interested in the arguments advanced by certain of my friends. I am interested as a person who has been listening for the past 30 years to arguments about increasing the power of State bodies. The Minister says he does not want to hamper this commission and he instanced the courts—look at the way the courts are hampered, he says, and he puts forward the argument that courts of one judge hear less important cases. Of course, one judge hears them but there is final power to appeal to five judges and all the time they work according to law and precedent.
Some people who, by their nodding, expressed approval of these arguments know all this very well. The judges are tied up securely by precedent. Nobody says: "Forget all about this High Court business, let us get this case between Stanford and Hayes dealt with at once, without any delays about referring to the law or the Constitution." That is the position the law is in but the position of all these bodies is quite different. The Minister brought out this argument, which is not a Fianna Fáil argument at all but is the argument of everybody getting into a ministerial chair. It runs: "I am going to appoint a commission. I am a reasonable man"—and of course the Minister is a reasonable man—"and as an intelligent man I am going to appoint men who are reasonable and intelligent and nobody ought to be afraid of them because how could I, the Minister, appoint anybody who will not do justice?" Of course, I know that is the Minister's point of view and it has always been his point of view— except when he has been in opposition. He is quite consistent about that as long as he remains a Minister. In this particular instance an inquiry is going to be made by one individual who has got no guidance of any kind in this Bill. His decision will depend on how he interprets the facts and his knowledge of the facts will depend on the questions he puts. Does not everybody know that?
Now, I do not give a twopenny ticket about how this matter affects drapers or anybody else. Send an inspector into a school and he may find the school inefficient but another inspector may find it efficient. No two men will always agree on such a matter and nobody's livelihood should depend on the decision of one individual. The Minister makes the case that the commission at their discretion may inquire through one individual. But that again depends on the commission. There is no analogy between the Industrial Development Authority and this body.
The Industrial Development Authority is dealing with people who must reveal their affairs when asking the Government for something and since they are looking for something it is only right that they should. This is a body which is the first step in "penal action" which is quite a different thing. It is simply another step in this constant business of a Minister appointing a commission and the commission having plenty of powers and the Minister making an Order on its report and then the Minister's majority passing it—and that is that. By these means you sidestep the courts and all matters of principle and you do not adopt the view that a man is innocent until he is proved guilty. Incidentally, it is very innocent to suggest that this whole business may possibly result in lower prices. In fact, it may very well raise them, as experience has already shown.
However, we have had an interesting discussion and I appreciate the attitude taken. But it is interesting to try to apply this reasonableness to other actions. What kind of commission, for instance, would Senator McMullen agree to to adjudicate between two trade unions? What kind of superman would the Minister have to be to appoint a commission which would decide the laws between two trades such as the sheet-metal workers and body-builders? I put down the amendment entirely as a person who feels strongly about every single step we take, no matter what arguments we make for it, towards increasing the power of the State and of the Minister and increasing the burden placed on the Minister which ultimately he cannot bear and which will have to be borne somewhere else.
Amendment, by leave, withdrawn.
I move amendment No. 3:—
In sub-section (1), line 6, to delete all the words after "into" to the end of the section and substitute "allegations made to the Minister or Ministers of restrictive practices."
This amendment really arises out of a subsequent amendment of mine which is designed to change the title of the Bill. I want these words removed to comply with the sort of Act I would like to see the Minister bringing in. I have already spoken on the introduction of the Bill to explain that my objection was not to any Act to deal with restrictive practices. The Minister says the Bill arose out of allegations made to him or to his Department. But if an inquiry is to be held by this commission it should not be solely into the conditions which obtain in the supply and distribution of goods but should be into the whole field of restrictive practices. I admit I am trying to score a fine point in trying to get the Bill widened so that it is not confined to trade practices as such. I am suggesting that it can be done by this amendment at this early stage, by substituting the words of my amendment for those in the Bill.
I am not going to argue that restrictive practices are confined to traders. They are to be found in the professions, in the trade unions, and in other economic activities. This is a Bill, however, to deal with trade practices and I do not think that the machinery, which it is contemplated should be established under it, is applicable to these other practices which may be quite as restrictive and undesirable as the practices against which this Bill is directed. I pointed out, however, to Senators during the course of the Second Reading debate that, in so far as trade unions and certain professions are concerned, we have legislated here to permit of the operation of certain restrictions by the bodies established under those statutory enactments. If there are undesirable developments by these restrictions they will have to be dealt with by amending the appropriate legislation. I do not think this commission would be a suitable body to consider other types of restrictive practices. We can get this commission to deal effectively with trade practices, but it might be undesirable to try to get it to deal with restrictive practices of all kinds. It is far better to confine this commission to the one task contemplated under this Bill, and if there are any tasks not dealt with in other directions let us consider them separately and consider the type of procedure and the method of approach which would be most suitable to deal with them.
In view of the Minister's statement that it is his intention at some period to introduce Bills to deal with other practices, I am prepared to withdraw the amendment. I wanted to stress the point of view of the Federation of Irish Manufacturers, that this Bill, as defined here, does not deal with manufacturers as such. I am withdrawing the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 4:—
In sub-section (1), line 6, before "members" to insert "permanent".
According to my reading of the Bill, a temporary member could be one of those delegated to hold an inquiry. I think that is a mistake and I do not know whether it is intended or not.
The Minister told us he had a long list of alleged unfair practices. I do not know whether they are the same as those which have come to my notice, but I can tell him that I could give him a long list and in practically no case on the list could I make up my mind whether the practice in general terms is unfair or not. Some practices seem, under some conditions, to be unfair and at other times to be highly desirable. Whoever is going to operate this commission at the beginning will be expected to establish in a very short time—subject, of course, to the particular Government of the day bringing in the necessary Orders—a certain code of what is fair or unfair. That is extremely important.
At the end of the Bill you find that a temporary member can be appointed for the purpose of a single inquiry only. Senator Stanford and others were anxious that we should be in a hurry. It would be possible to have temporary members for a lot of single inquiries. That would be clearly different to the Minister's intention but it could be done under the Bill. I want to make it clear that in any inquiry there would have to be one permanent member along with the temporary member.
I have a feeling that it is undesirable to make a distinction between temporary and permanent members, to imply that the temporary members are in some way inferior. A temporary member will have all the powers, functions and duties during an inquiry that a permanent member would have for that inquiry. I think that is desirable. I do not see the commission deciding that an inquiry should be held by one temporary member only but at the same time I do not want to put in the Bill provisions that suggest that a temporary member is a sort of lesser brother with an inferior status to that of the permanent member. It is not intended that he should be inferior to a permanent member in relation to a specific inquiry in which he is engaged.
I am afraid I cannot accept that. I do not agree that because you have a different function you are inferior. It is quite clear that the temporary member may be appointed for the purpose of one inquiry only. If that is so, he cannot be aware of the established code of a commission which is intended to last for five years and possibly for a longer time. To have one person brought in to hold an inquiry and asking only the kind of questions he would think fit could be undesirable and lead to different standards.
I rather gathered from the Minister's previous speech that the temporary member was to be a sort of superior member, in other words, that he was required for a special purpose because of his technical knowledge and because the commission might say that for a particular inquiry they wanted someone in the nature of an assessor. I think the Minister used that term. Therefore, I suggest that such a person should not hold an inquiry by himself. It would be quite reasonable to provide that where there is only one— which I think is a mistake—at least that one should be one of the permanent members.
Furthermore, the Minister emphasises that the report is to be made by the commission as a whole. The temporary member may be appointed only for a short time and he may not be a member of the commission when the commission is going to issue the report.
Altogether, everything the Minister has told us with regard to the temporary members does not seem to fit in with the idea of a temporary member holding an inquiry by himself. I feel strongly on that point.
There are cases where a permanent member may be incapacitated for a good while and a temporary member may be acting in his stead. Such a temporary member may have considerable experience. In any case, the Senator's amendment as phrased would prevent a temporary member acting on any inquiry.
I am not going to stand over the exact wording of my amendment. All my amendments were put down to raise points I thought to be of importance. I suggest the Minister might consider this between now and the Report Stage.
A temporary member acting in the place of a permanent member who is incapacitated should have all the functions of a permanent member. A temporary member appointed for one inquiry would obviously be chosen to assist a permanent member in conducting the inquiry. I cannot conceive circumstances under which he would be conducting the inquiry by himself without any permanent member associated with him.
I think there was a very strong case made on Senator Hayes's amendment to have two members conduct these inquiries. That amendment was withdrawn. I feel that, having lost on the two, there is a very good case for having at least the one that does sit a permanent member. I would like to say again what I said on the other amendment, that there is a lot of perturbation in business circles about this particular section, and I feel that this would be at least some little relief to people's minds. I want to stress that, when I speak of perturbation among certain people, I am only talking about it being there amongst the innocent and not the guilty. We are not here to protect people who are carrying on unfair restrictive practices, and I do not want anyone to be confused on that point. We are not trying to defend people who are engaged in these practices, but want to protect innocent people from inquiries that are, in their opinion, not reasonably conducted, and if the word "permanent" were here, it would be better than it is at present. I feel that if the word "permanent" were inserted, it would improve the section.
My feeling is that it will be a complicated matter to make the provision that Senator Douglas has in mind, and, while I have no objection to it, I think it is so unnecessary that it is not worth while doing it. I will, however, consider if it is possible to get any phraseology which will provide against that very remote contingency of a temporary member appointed to assist the other members in an inquiry holding the inquiry by himself.
Amendment, by leave, withdrawn.
I move amendment No. 5:—
In sub-section (1), line 8, after "goods" to add "where an inquiry is held by only one member of the commission a written report of the whole proceedings shall be available to all the members of the commision."
This is an amendment which may not be very important, but I put it down in order to get to the public and clearly in the Bill what the Minister says is the intention, namely, that the full responsibility for the report will be on all the members, whether present at the inquiry or not. There is no way I know that would make that clearer than acceptance of my amendment or some such form of words.
I certainly cannot see any responsible member of a commission making a report and recommendation without having available to him an account of the proceedings at the inquiry conducted by the member. I do not think we can tie up the commission with recommendations of this kind. It is far better to say that they should be responsible for their own procedure and assume that their procedure will be rational.
I presume that the Minister's wish is that such a written report should be made available to them?
I hope I will succeed in getting members of this commission who will not make a report to me without having all the information which they should have before preparing the report.
While I can appreciate that, I would not be prepared to condemn a member if he did not insist on having a verbatim report of all the evidence. It is not always provided for a commission, but I think that in this case, if they are to have the full responsibility, it is desirable that they should get it. The Minister made a reference to one body and I have no desire to cast any reflection on that body—it is a body for which I have great respect—but I doubt very much if there is a verbatim report of all the evidence put before any one member of that body, nor do I think it is necessary.
I cannot see any commission member signing a report describing conditions in any trade, expressing a view as to how these conditions restrict competition and recommending what should be done about them, without having a report of the proceedings at the public inquiry available to him. The trouble of putting in regulations of this kind is that, once you make such rules statutory rules, you have to provide all sorts of machinery for ensuring that these statutory rules are observed and the question might then arise of appointing inspectors to see that every member has got the report and has read it.
There are quite a number of statutes in which there is no procedure laid down to see that they are observed. I can give the Minister a long list, if he wishes it.
I doubt it.
Amendment, by leave, withdrawn.
I move amendment No. 6:—
In sub-section (3), line 18, after "person" to add "or to hear the evidence of a person who asks that his evidence be heard in private".
This is a completely different point. I do not know that my wording does any more than indicate what is in my mind, but I urge the Minister to look into it carefully. It is particularly important in view of the fact that there may be only one member holding the inquiry. I have not received the Official Report, but my recollection is that the Minister was rather severe in his reply to the debate on Second Reading on Senator McGuire, because he thought Senator McGuire had talked about people being hauled before the commission as though they were guilty of an offence or accused of an offence.
I know quite well that this commission is not a court, and I know that the fact that a person is asked to appear as a witness before it does not mean that he is guilty of anything, but I suggest that, after the long debates and the publicity that has been given to the matter, together with the suggestion that there are so many unfair or restrictive practices, there are very many cases where a firm being asked to give evidence would appear to the public as being guilty of a particular practice or at least under grave suspicion. The object of the inquiry is to get the facts, and there may be many persons who may have to give evidence against whom there is not only no suspicion but who are people suffering from a grievance.
On the Second Stage, I pointed out that it was quite possible that a person obtaining supplies from a large and powerful firm would be unwilling to give public evidence before a commission setting forth his experience of that firm if he knew that, even with the greatest possible expedition, it would be six, eight or nine months before a Bill could become law. What I should like the Minister to provide— and I think it is reasonable for the purpose of ascertaining facts, and enabling this body to come to a decision —is that if a witness wants to be heard in private, and if the commission agree that it is reasonable that that witness should be heard in private, it should not be necessary to satisfy the commission beforehand that he would necessarily be injured in his business by giving his evidence in public. In other words, if Lemass and Company are giving evidence against Douglas and Company and strongly suspect that Douglas and Company will penalise them or will not be too friendly with them because of that evidence, they can never prove to a commission that Douglas and Company are going to do that.
In the interests of the success of the whole commission, it should be possible for a witness to give evidence which will not be public. I am not at all convinced that the value of a public inquiry is as great as is thought. The principle, however, has been more or less accepted, but you may find it very difficult. You will have reluctant witnesses, I am certain, and I am not sure that you will get the facts clearly, if it is not possible for a witness to say: "I wish to give my evidence in private," and, subject to certain safeguards which the chairman should be satisfied are reasonable, I do not think a witness should have to prove, as he does under the section, the need to avoid disclosure of information.
The Senator has raised a point of some importance upon which I have not got a very definite view, but nevertheless, such view as I have on the point is against his contention. My feeling is that these inquiries should be held in public. That view is based, first, upon the desirability of getting public understanding of the operation of trade practices and the case that can be made for and against them by those who support them or desire their removal, and, secondly, on the fact that the outcome of the inquiry will be a public report, a report which will be published and may be the basis of legislation. In so far as it is desirable that all legislation passed by the Oireachtas should have a firm foundation in public opinion, the process of instructing public opinion about the need for it should begin with the inquiry. I would be strongly opposed to any move to prevent an inquiry being held, in the main, in public.
On the other hand, it is obvious that, in the course of an inquiry, persons appearing as witnesses before the commission may be unavoidably put into a position in which they could not answer a question by the commission or give the information the commission needed without disclosing confidential information concerning their private business. I think the commission should be empowered to protect people being put in that position, where damage might be done to their business interests by the publication of information which in many cases might not even be relevant to the particular matter under investigation.
What Senator Douglas wants goes further than that. It is that allegations regarding restrictive practices against a trade association, for example, should be made in private because the individual firm or person making the allegation may be subjected to penalties by the trade association pending the enactment of legislation which might follow from that inquiry. I think it would be dangerous to provide that safeguard, even though the danger which Senator Douglas has in mind cannot be ignored. If a trade association is, in fact, suspected of operating undesirable trade practices and if evidence against that trade association is going to be taken, it is not good enough to have the allegations made in private, particularly if the trade association has to make its defence in public, which would be the normal procedure under the Bill as it stands. Nor do I see how you can empower the commission to enable such a witness to give his evidence in private without creating the danger that a suspicion may develop that the commission is covering up matters that should be made public or is giving preferential treatment to one witness as against another.
On the whole, I think it undesirable to meet the point raised by Senator Douglas, although I recognise he has a point. Taking it that his contention is that a witness giving evidence against a trade association——
I did not say trade association; I mean any person or firm.
——or against a group of traders or some powerful economic interest may be refused supplies or be ultimately prejudiced in business pending the enactment of legislation debarring restrictive practices in that trade and that to prevent him being so put in that position he should be allowed to make his charges against the economic interest or trade association in private, I am not sure that the protection would be real if, in fact, the trade association or economic interest is questioned in public as regards the alleged practice, because that questioning would not be very effective without stating something which would reveal the source of the allegation, the individual who had made it.
If the Senator agrees with me that it is better to proceed on the assumption that the investigation should be in public, that the commission should only be empowered to allow a witness to give evidence in private where that evidence necessarily involves confidential information regarding the witness's business, then I think he will also agree that it is undesirable to make exceptions to that rule even though there may be some danger to individual witnesses or some reluctance to give evidence because of that danger. I do not see that there is any real safeguard against that except by going the whole hog and holding the inquiry in private, which would be undesirable. It would not even be a safeguard because if what the Senator fears, that some powerful economic interest will penalise the person who gave evidence against it, is realised, it does not make any difference whether it is in public or private as long as the economic interest knows about it. It would be very difficult to frame an amendment for that reason and there are other dangers, but it is a matter upon which I am open to conviction.
I think the amendment put down by Senator Douglas is altogether too wide because it permits almost everybody who wants to give evidence to give it in private. I suggest that the amendment would nullify the public inquiry aspect of the matter because any man who felt he ought to ask the commission to hear his evidence in private would be facilitated. The possibilities are that every witness would ask for those facilities.
I am concerned to some extent with the possibility that work people might be prepared to give evidence against an employer who is doing something which is considered a restrictive practice. I have in mind a case that happened some years ago. A publican watered the whiskey.
That is illegal.
His assistants helped him.
That was widening, not restriction!
The union discovered what was going on and they told the men that would have to stop. When they stopped they were sacked and they went on strike and went in a picket line outside the shop. I do not think the watering of whiskey is a restrictive practice but the point is that these men took action against an employer and were penalised. The same thing might happen in respect of people employed by employers such as Senator McGuire and Senator Douglas in regard to something which should not be going on. If these people wanted to make a report to the commission and had to make it in public there might be repercussions, just as in the case of the people who watered the whiskey. I think the commission should be given discretion to agree that certain types of people should be heard in private, but that should not be put into the Act. Some discretion should be given to the commission.
I take it that the sub-section as it now reads does, in fact, enable the commission to hold certain private sittings. That is already in the sub-section. Senator Douglas wanted to protect the witness who might want to give evidence against somebody so that the person charged would not know the evidence which had been given against him; in other words, that he would not be victimised. I do not agree with that. If a person's business is being investigated, that person should know what is being said and by whom. If a person is afraid to speak in one's presence, I do not think his evidence should be accepted at all.
I am inclined to agree with that. I would not interpret the wording of sub-section (3) as giving power to the commission to hear in private the evidence of a witness who said: "I do not want to give my evidence in public, because I feel that if I do I will be victimised through the denial of supplies by the trade interest which is being investigated." My interpretation is that it enables the commission to hear in private only evidence of a character which, if disclosed in public, would be detrimental to the legitimate business interests of the individual concerned. It is not the public disclosure which might damage the witness; it is the knowledge that he has given evidence reaching the trade interest which is being investigated.
I think, therefore, if you want to deal with the point put forward by Senator Douglas, you would want to amend the Bill, and amend it in such a way as to give the commission absolute discretion for reasons which appear good enough to it to hear one witness in public and another witness in private. It would be very dangerous to do that. First of all, it would be regarded as unfair by the trade association being investigated and which may be the subject of an Order and legislation upon the basis of that witness's evidence and, in the second place, you would raise the danger of public misunderstanding of the procedure.
The public might believe that the witness or the company was being favoured by it, not because of the nature of the evidence, but for some other undesirable reason. You have got to leave it as it is to require the commission to hold an inquiry in public and to take whatever steps are involved in the holding of an inquiry or give the commission such wide powers that the inquiry could just as well be held in private.
There seems to be nothing in this section dealing with inquiries to make sure, when the complainant gives evidence in private or in public, that it shall be responsible evidence. In other words, what I am afraid is possible under the Bill as it stands is that a person or group of persons can make reckless, wild and irresponsible charges with consequent damage to the trade interests they wish to have investigated. Under a Bill of such a far-reaching nature, trade interests which are to be investigated should be protected from reckless, unfair and unsubstantiated evidence in public or in private.
In introducing this amendment I seem to have rather misled the House and the Minister as to what was in my mind. Frankly, I was not thinking of people making or giving complaints but was assuming that the complaint would have been made before there was an inquiry at all, and that the commission, either at the suggestion of the Minister or on their own initiative, would decide to have an inquiry and would endeavour to examine the matter and send for witnesses who might prove reluctant to come. I was not visualising at all people who may make complaints and who certainly ought to take the risk of their being made in public. As regards most of the complaints about unfair practices, which I have heard in connection with a number of trades, I have found it difficult to make up my mind whether or not they are unfair or whether they were made by people with a grievance.
I have heard some complaints, as president of an association, and found that there was nothing in them at all, but it does not follow that would be in any way general. I suggest that I should withdraw the amendment so that the Minister might be able to consider the matter. I did not make any effort to put down a perfect amendment but rather to put down something which would enable me to draw the Minister's attention to the matter. I think it would be wise if the commission had more discretion. In moving the amendment I did not want to make it obligatory simply because a person asked for it. If no amendment is brought in and if the commission is satisfied that secrecy is desirable, I think it might be difficult. I am not pressing it now, but I think I have shown that it should be further considered. I do not want to prevent publicity for those who want to make complaints as I think that they should be willing to make their complaints in public. In my amendment, I was thinking of people who are brought into the inquiry as witnesses in order to ascertain the facts.
I will consider it and see if there is any point there which I can improve.
Amendment, by leave, withdrawn.
Question proposed: "That Section 7 stand part of the Bill."
On Section 7, how does the Minister envisage that sub-section (5) will operate? My reading of the sub-section: "Where the commission, having received a request from any person to hold an inquiry, decide not to hold an inquiry, they shall inform that person of the reasons for their decision"—would seem to indicate that they would have to go to the necessity of a protracted inquiry. It could not be said that they had not the time to examine the case and that would be tantamount to another inquiry.
There is a good deal in that. This sub-section was inserted by way of amendment in the Dáil and I agreed to it rather than have an argument about it, but I felt that that objection applied to it and the commission could not give its reasons for not holding an inquiry without holding what would be tantamount to an inquiry. But in practice the commission will avoid that difficulty by postponing the decision where there is real doubt as to whether an inquiry is necessary or not. It will be only in a clear case where the volume of evidence is so slight, or where the matter complained of is not a restrictive practice, that they will exercise the powers given under this sub-section.
May I point out that it will be bad and will vitiate largely the work of the commission because of the insertion of sub-section (5)? The commission may, on its own initiative and at the request of the Minister, hold an inquiry; inferentially, sub-section (5) would seem to indicate that a request may also be made by a person and that if the commission do not hold that inquiry they must tell the person all the reasons. Is that clear from sub-section (5) or could it be properly inferred? We will assume that in all the work of the commission, if this sub-section remains, there will be a shoal of letters coming from individuals who, in the main, will have grievances, and whether these grievances prove to be justified or not is beside the point. In these letters persons can make requests, and it seems that there is nothing preventing them from making a request. It is mandatory where the commission decide not to hold an inquiry that they shall inform the persons of the reasons for their decision.
Any person can write into the commission saying that a certain firm XY is carrying on a restrictive practice in that it refused to supply him with the goods for £AB. That may prove to be right, but you cannot say whether it is or not, and in order to reply, certain investigations will have to take place. Even if these investigations, in order to speed up the reply, are fairly skimpy, the reply will certainly appear in public, published in the local or daily newspapers, because the person responsible for bringing up the matter will want ventilation. Personally, I cannot see a reply that will comply with sub-section (5) couched in such language that it must be treated as confidential and not published or advertised.
It is undoubtedly true that that is intended and that people desiring to have complaints investigated will be able to approach the commission or the Minister for that purpose. The commission can refuse to conduct an inquiry on the grounds that the complaint is frivolous or relates to some matter not within its terms of reference, or the Minister can refuse to refer the matter to the commission for the same reasons. But where the application refers to a matter within the terms of reference of the commission and is not of a frivolous matter, then it is not unreasonable that the commission should be asked to say why they should not hold an inquiry, if such an inquiry is requested by a responsible person or organisation.
I should think that it is most unlikely that the commission will decide not to hold an inquiry in such circumstances unless they feel that some inquiry which they have already held really covers the matter concerned, or that they have some other reason of that kind against holding it. They may, and probably will in the great majority of cases, have to reply that the programme is so full that they could not undertake an inquiry in the immediate future. Where there is a responsible request by a responsible organisation for an inquiry into some matter clearly within the terms of the commission, then there is no reason for not holding an inquiry.
"A responsible request from a responsible organisation" is an entirely different thing from "a person". Everybody in business has had grievances of some sort at some time or other, but very often on reconsideration of the matter they have done nothing about them. Under this section, people are given the right to set the commission going and are entitled to a reply as to why an inquiry is not being held. I would not favour such provision because it would lead to the position in which questions might be asked and the Government might be held responsible.
I think we should leave responsibility with the commission to decide whether or not an inquiry would be held.
As I stated on the Second Reading, there seems to be a difference between sub-section (1) and sub-section (5), and it seems to me that when the original Bill was being drafted the idea must have been that the commission or the Minister should be able to initiate an investigation. As I stated on a previous occasion, any person will be in a position to start the machinery going by asking for an inquiry, and I think that there should be some provision whereby the commission could award costs against a person who made an application for an inquiry frivolously or maliciously.
The difference between sub-section (1) and sub-section (5) is more apparent than real. The Bill originally provided for the initiation of an inquiry by the commission or Minister, but in practice it was recognised that neither the Minister nor the commission would move in this unless some volume of complaint was brought to their notice which justified action by way of inquiry. I, therefore, did not object to the insertion of the sub-section which suggested that an individual could move in this matter because that is in practice what will happen. Whether an inquiry will be held or not is a matter for the commission or the Minister. They will be the screen through which frivolous or malicious complaints will not pass, and if an inquiry is held it will be because the Minister or the commission have decided in view of the complaints that an inquiry is necessary. Having reached that decision, the responsibility for holding the inquiry is theirs, and there could in those circumstances be no question of costs against any individual.
I accept what the Minister has said in that regard— that when the commission has decided to hold an inquiry costs cannot be awarded against the person who made the complaint in the first instance. I suggest, however, that when a complaint is made there will be a preliminary investigation as to whether an inquiry should be held and the person who makes a frivolous and mischievous complaint should be liable to costs up to the stage of the preliminary investigation. That, I think, would be a deterrent against persons who might be inclined to make such complaints. I suggest that it would prevent a great deal of time being wasted.
We must remember that the commission is not a court deciding as between plaintiff and defendant. If an inquiry is held it will be because the commission has decided that it is necessary. It will not be a question of whether the complaint made was frivolous or malicious but of the commission having made its own decision that an inquiry is necessary and, therefore, there can no longer be a question of costs against anybody.
To my mind, the only part of sub-section (5) which is effective is the last line, and even if it was not there people could still write to the commission and ask for an inquiry.
That is right.
And people could write to the Minister and make complaints. They will make suggestions to the commission but I do not see why the commission should be compelled to answer them at all and, if they are compelled to answer, I do not see why they should have to state their reasons. I suggest to the Minister that if they do so they will provide a very fruitful field for parliamentary questions. Even if sub-section (5) were not there at all, I assume that any body or association could write to the commission and say: "We believe that so and so is going on and would you investigate it?" I do not understand why the commission, having decided that an investigation was not justified, should then be compelled to give their reasons for that decision.
If the commission decide that a complaint is frivolous and mischievous they can tell the complainant that.
That is the last thing they would wish to do. I should hate to be a member of a commission that would be legally obliged to give such a reason.
I do not think there is any reason at all for the last words in that sub-section, and, that being so, there does not appear to be any reason for the sub-section at all.
Apart from complaints about the wording, I think the sub-section appears to be entirely inconsistent. There are two ways in which a member of the public can get the commission to work. One is by writing to the commission and the second is by writing to the Minister. If he writes to the commission he must get a reply, but if he writes to the Minister there is nothing to say that he must reply to the letter.
The best thing is to write to his Dáil Deputy and get him to raise it in the Dáil.
The Minister should look into the matter again. It definitely requires an amendment. Surely, no matter how optimistic he is, the Minister will realise that there will be vexatious complaints. It is very important that Senator Hearne should have raised the question. Could you imagine how the commission would reply to a vexatious complaint? They would say: "You are dealing with Baxter, who is a queer fellow who might get up on a platform and pervert our words, and we must choose every word very carefully." My feeling is that, if you are going to get the thing to work, the commission ought to have discretion where they are dealing with the type of person or group of people who would make purely vexatious complaints.
You could, conceivably, have a group of people claiming to be representative, and they could prove a very difficult lot under this Bill. They could go around with banners flying and claiming that they could pull down prices. If they have the right to demand sheaves upon sheaves of replies from this commission as to why complaints which they made are not going to be inquired into, you are going to put the commission in a very impossible position and destroy all confidence in it. The Minister should reconsider the whole sub-section.
I do not see the difficulty many others see. The machinery will be, as I visualise it, something like this. A person makes a complaint. The person or particular firm, company or combine against whom the complaint is laid is communicated with by the commission and told that this allegation has been made against him. He replies and the reply is either completely satisfactory or it is not. If it is not, the commission must conclude that the person making the complaint has at least made a prima facie case and there is reasonable subject matter for an inquiry. If, on the other hand, the firm against whom the complaint was made has made a satisfactory reply there is no reason why the person making the complaint should not be communicated with and told something such as: “your complaint is not well based for the following reasons”, giving the reasons supplied by the firm against whom the allegation was made. I do not see in practice any difficulty whatever in the working of the matter. With regard to Senator Douglas's point that single individuals should be prevented from making complaints to the commission, I think if that were enacted it would defeat the whole purpose of the Bill.
Senator O'Brien's suggestion might be reconsidered by the Minister. The position is that a person makes a complaint and somebody replies and that entails a certain amount of expense. One thing people in this country love is running down their neighbours and it is possible that the commission will receive any amount of false complaints of restrictive practices. Senator O'Brien's suggestion is that those people ought to be penalised in some way for making a frivolous complaint. The Minister says that up to that point nothing has been done by the commission either to make or not to make inquiries. Up to that point, however, the defendant has been put to a certain expense or inconvenience just because somebody out of sheer crassness wanted to make a complaint.
So far as giving a reply is concerned, I do not see that that is any difficulty at all. An individual who wanted to set this machinery in motion could approach the commission or the Minister. The commission would have no more difficulty in replying than the Minister. If the Minister is questioned in the Dáil he will have to give some reason why he did not direct the commission to hold an inquiry. I should imagine the commission will not come to a positive decision on any such application very quickly. If there are doubts about any complaint the commission will possibly postpone a decision to see if it will be duplicated by others and its decision to hold an inquiry will be influenced by the number of times a complaint is repeated. Therefore it is far more likely that the commission will reply that a decision has not been taken as to whether an inquiry will be held than that it will state that an inquiry will not be held; except where the commission has already investigated a similar complaint or where somebody seeks to move the commission under Section 7 and, in fact, action has already been taken under Section 4.
Question agreed to.
SECTION 8
I move amendment No. 7:—
In sub-section (1), before paragraph (c) to insert a new paragraph as follows:—
(c) where the conditions involve resale price maintenance, state whether this in enforced by collective agreements or operated by independent persons or companies.
As the Minister pointed out previously, Section 8 provides for specific matters which must be dealt with in the report. I drew attention on the Second Stage to the fact that there may be a very great distinction between resale price maintenance when operated as a result of a combine or ring and the same operated by an individual firm. I personally believe that when it is operated by an individual manufacturer it can be something decidedly beneficial, especially in the interests of the smaller man. It is, therefore, particularly important that in any report there should be a clear distinction drawn and information given as to whether there is any operation of rings in relation to resale price maintenance.
In the United States not very long ago there was a decision of, I think, the Supreme Court, which rendered the operation of individual resale price maintenance regulations and agreements invalid, covering about 45 States. As a result, there was chaotic competition and price cutting with some disastrous results. The matter was remedied curiously enough by a gentleman with the name of McGuire —he even spelt it McGuire—who, as a Representative, introduced a Bill to deal with the matter. In signing the Act, President Truman stated:—
"The main reason for enacting the State Fair Trade Laws is to prevent some merchants from selling branded items at very low prices (often below cost) in order to drive other merchants out of business, or in order to attract customers who are then sold other items on which high prices are then charged."
He also said:—
"I have signed this Act because it does have value in eliminating certain unfair competitive practices, and thereby will help small businessmen to stay in business—which I think is a healthy thing for our economy and our society."
There has been an impression— which I think is wrong, as the Minister was very careful not to say anything of the kind—that resale price maintenance is condemned in this Bill. It is not condemned anywhere in it. It is extremely important that there should be a clear distinction in any report between any form of agreements for price fixing which are the result of combines and an arrangement by an independent firm to brand an article and fix the price at which it should be sold.
On the face of it, this does not appear to be necessary. Perhaps I might paraphrase the paragraphs of sub-section (1)—it requires the commission to describe the conditions which obtain in regard to the supply of goods and whether and, if so, how these conditions involve resale price maintenance. It seems to me that that covers everything the Senator is trying to get at in the amendment.
With respect to the Minister, I think that Senator Douglas raises an important point. There is a difference between price maintenance imposed by a cartel and price maintenance which some manufacturers could prove to be necessary for the continuance of their own business. It is well known that you cannot have a blanket arrangement like this covering all trades or even covering all firms in the same trade. There are firms where the very success of the business itself depends on the right of the manufacturer to say that his goods are of a certain quality and that in order to maintain his hold on a particular section of the market he must have the right or privilege of fixing the price at which the goods will be sold and, in some cases, the type of person to whom the sale will be effected. That is important.
My argument is that Senator Douglas's amendment is unnecessary because the Bill, as framed, requires the commission to report on the matters on which he is anxious to have a report. They are required to describe the conditions prevailing in the trade and whether and, if so, how these conditions involve resale price maintenance.
It does not say "if so". It says "and, if so, how" they "involve"——
"Whether and, if so, how".
It certainly has not been read that way. All I am concerned with—and I would press the point—is that it is very important, particularly in the case of resale price maintenance, that the public should know whether rings are operating or not. I am particularly anxious to get that in the report.
It seems clear in the Bill, as the commission is asked to report "whether, and, if so, how" resale price maintenance arrangements are secured.
I think it means "and, if so, how" they involve——
Whether they do and, if they do, how they do.
It seems possible with the present wording that they could make a report as a result of an inquiry and would not make it clear or would not have gone into the question as to whether or not there was a ring.
Does the Minister argue that "how" would involve a statement that resale price maintenance was being practised by a particular firm or was being forced by an association?
Yes, certainly. Assume they have decided that there are resale price maintenance arrangements in operation, they then have to report "how"—how the conditions of trade involve resale price maintenance. It seems to me they could not just report under that heading——
What does the Minister mean by "involve"? I cannot understand the connotation of "involve".
It relates to the word "conditions". Senator Douglas wants the commission to report on this aspect of the trade—if there is a resale price maintenance arrangement in operation, is it operated by an individual firm or by a group of firms acting as a ring? I say the commission just could not report under paragraph (b) of this sub-section (1) without answering that question, in so far as they are asked to report on whether there are resale price maintenance arrangements and how the conditions prevailing in the trade involve resale price maintenance.
The Minister referred to paragraph (b). That takes us a step further. Resale price maintenance seems to be in actually the same category as restraint of trade and restrictive competition. That seems grossly unfair. It ought to be clearly distinguished that resale price maintenance is, in the overwhelming majority of cases, an essential thing to ensure stability in trade; and to put it in here without any distinction of wording is to put it in the same dock as restraint of trade and restrictive competition.
Another thing is the reaction this would have on trade brands. Quite a number of new Irish industries have gone to the trouble of creating trade brands. If they are able to put a product on the market and build it up behind resale price maintenance and a fixed price, and if there is then any slur imputed to resale price maintenance, it will have a deleterious effect on any trade mark for new Irish products.
I do not think the Minister quite understood me, while I think Senator Summerfield did. The commission must report, according to this, on whether there is resale price maintenance. The commission may decide that was not an unfair practice, but it must report it. It is one of the things they must report. I say it is logical and wise to say that if you provide they must report, if you leave that there—if you will take it away, I will be satisfied—you must report whether it is a result of rings or purely independent action. I think the Minister does not quite realise how important this is. I am not personally interested in any brand that I think could be affected by the Bill, but there are many Irish manufacturers, as Senator O'Donnell said, who are uneasy and who will be afraid to go on with their plans until this matter has been settled. It would be a very great encouragement if something like the amendment were put in, if you are going to insist that the report must deal with resale price maintenance.
It is only a question of wording. The Senator says the commission must report whether the conditions in the trade involve resale price maintenance and, if so, they must state whether this is by a ring or by some other arrangement. The Bill says they must report on whether there is resale price maintenance operating in the trade and, if so, how. I think the words in the Bill are better, but both mean the same thing.
I think there is a point in this and I will press it to have it decided.
One can see in this debate—it was obvious in the other House—that there is confusion in the minds of people—Senator Colgan gave expression to it a few times by interjections—between branded goods and price maintenance arrangements which are the result of action by monopolies or groups. Individual firms brand goods and sell them at fixed prices. There is nothing wrong in that because the element of competition still remains and the manufacturer of, say, shirts who brands his goods is in competition with other shirt manufacturers and not engaged in monopoly price maintenance operations. He has a certain standard of goods which he sells in a certain way, giving certain guarantees with regard to replacement and so on. If the amendment is accepted, the report will set out, where there is a price maintenance arrangement, whether this arrangement is the result of collective agreements or is operated by independent persons or companies. It does differentiate between the branded goods of a single manufacturer and monopolist groups getting together to keep up prices.
There is a misreading of this section. Under the Bill, paragraph (b) does not involve any condemnation of any practice. The commission must report on the conditions in the trade. It must report whether these conditions include a restriction of competition or restraint of trade or resale price maintenance and must then go on to say whether, in its opinion, these restrictions of trade or competition or resale price maintenance arrangements are unfair and operating against the public interest. Paragraph (b) merely requires the commission to state the facts. It is under (c) that they state their opinion on the facts. My only argument is that (b) means precisely what Senator Douglas means in his amendment.
We feel that there is something more than just the commission involved—that it must be got over to the public.
How could the commission report on how it is done without answering the question Senator Douglas has in mind?
In putting down this amendment, I was not trying to be difficult. I was merely trying to clarify the position. Having carefully read (b) and (c), I came to the conclusion that (c) provided that the commission must state its opinion as to whether any such interference with competition or trade is unfair or operates against the public interest. It does not say that they are to report whether resale price maintenance does or does not.
(b) says that.
"Any such interference with competition or trade".
(b) says that they must report whether the conditions in the trade involve resale price maintenance and, if so, how they involve it.
I still think, particularly in view of the Minister's attitude at the beginning, that this is singularly lacking in clarity in that it makes no clear reference to reporting about rings. I have had a been in my bonnet all my life about rings and have always viewed them with considerable suspicion.
My argument is that I have done in the Bill what the Senator wants me to do.
I do not think so, but I am not going to argue any further with the Minister.
Amendment, by leave, withdrawn.
I move amendment No. 8:—
In sub-section (1) to add at the end a new paragraph as follows:—
(e) state whether the commission is unanimous in its conclusions and the number of members of the commission who held the public inquiry.
This seems to me to be a matter of considerable importance and interest. If the public are to know what the report of the commission is, it is reasonable that they should know whether it was a unanimous opinion or not. I put the amendment down because of the insistence on an inquiry by one member and the fact that, according to the Minister, it is to be followed by a report by the whole commission. That means a meeting of the commission presumably with a quorum, which is comparatively low, and I think there should be something to indicate whether the whole commission is in agreement with the report or not. Remember that, as the Bill stands, the quorum is two, which could include one of the temporary members and therefore it seems to me right and proper that there should be some indication as to whether it is unanimous or not.
There is nothing in the Bill which requires the commission to be unanimous or prevents an individual member, dissenting from the majority view, from submitting a minority report. That can happen and the reports received from the commission will be published. I would object, however, to the implication in the amendment that a report following on an inquiry held by less than the full membership of the commission is less valuable than a report following an inquiry on which all the members acted. So far as public knowledge of a fact is concerned, such inquiries will be held in public and everybody will know what members of the commission acted on them.
Certainly, they could know. I can see the Minister's point, but that is one point on which we disagree.
Amendment, by leave, withdrawn.
I move amendment No. 9:—
In sub-section (3) (a), line 43, after "Oireachtas" to add "and send a copy of the report to every member of each House of the Oireachtas".
It may be said that this amendment might be opposed because Senators think that we get too many copies of documents and the Minister may oppose it because the fact that it is laid on the Table of both Houses is published in the Orders of the Day. My answer to that would be that it would be usual to expect that in the case of a usual Bill, but this Bill is most unusual. Its form is almost unprecedented and these reports will be matters of very great importance for large numbers of people and for various classes of people. Therefore, I think that members of each House should be acquainted and fully acquainted with these reports, and that will not be so if merely a notice is placed on the Order Paper to the effect that the reports have been laid on the Table of each House. As we may expect these reports will be of very great importance, every report the Minister receives should be sent to every member of the Oireachtas. The procedure to date whereby a document of this kind is laid on the Table of both Houses would not suffice in such an important matter as this.
The only question that arises is whether members should get their report free of charge or not, and that is a matter for the Dáil office. It is the Dáil and Seanad office which decides whether a report of this kind, published as a result of an inquiry, is made available to members through the Library or through circulation. There is certainly no precedent in any Act requiring a Minister personally to send a copy of a report to every member of the Dáil and Seanad. The only thing a Minister does is to make copies available to the office here and they do the circulating. I do not think we can make that a statutory obligation on the Dáil office.
Surely the Minister can by this Act impose an obligation on the Dáil office to carry out the requirements of the Act?
That would be a finance matter—to impose an obligation on the Dáil office to pay for the reports.
There are some documents laid on the Table of which only three of four copies are sent here. There are others which are printed and of which any member, if he makes a request, can get a copy. I think a report of this kind should be printed. It should be available if anyone requires it. Frankly, I do not think it matters much who sends it out so long as sufficient copies are available.
In some cases in my experience a report is of such a character that the Minister concerned would say that it would be a good thing if every member read it. Therefore, the Minister would take steps to see that it was read. The normal practice, however, is to make copies available to the office where the decision to distribute is taken.
I would like to proceed from the normal practice in the case of reports made by these commissions. I quite appreciate the accuracy of what the Minister has said, but he is endeavouring to push me off by referring to what the usual practice is. I want the Seanad to establish a new practice in this case. I want the Oireachtas to impress on the Minister to send a copy of the report to every member of each House of the Oireachtas. The Minister answered that by referring to the usual procedure followed. In this case I want the unusual thing. Having already said that these reports will be very important for a large number of people, I want the Oireachtas to say that the Minister should send to every member a copy of every report.
Put in a condition that the Seanad will inform the Minister of the name of every Senator and his last known address.
There will be no difficulty in the Minister's Department. I am sure we will be able to assure him that he will not have the slightest difficulty in obtaining the names and correct postal addresses of every member of each House. These reports are of very great importance. They are of more than ordinary importance. Therefore, every member should get a copy of the report.
We may miss these reports if the present procedure is followed. They are reported on the back of the Order Paper and we might very well miss most important reports. I cannot accept what the Minister says that he endeavours to help the Dáil and the Seanad office. That is very kind of him, but I want to help members of the Oireachtas and the only way in which I can do that is to seek to impose an obligation on the Minister to send each member of the Oireachtas a copy of every report.
Who will pay for it?
I am not concerned with that.
But I am. I will make copies available. Personally, I do not know what the present procedure is. I do not know how the Stationery Office is paid or whether it is paid at all. So far as I am concerned I will follow the normal procedure of sending the copies here and leaving it to the Seanad office to deal with them.
I think the Minister is creating unecessary difficulties about this and I suspect the reason is that the Minister knows there is no valid argument against what Senator O'Reilly put forward. Surely the Minister does not seriously suggest that he, as a Minister of State and as the Tánaiste, does not know how to obtain the names and addresses of members of the Seanad.
No.
At least there are 11 names and addresses which he can obtain direct from the Taoiseach—the names of those who were nominated by the Taoiseach. If he goes to the Clerk of the Seanad he will have no difficulty in finding the whereabouts of the other 47. Senator O'Reilly made the point that he wants to impose on the Minister under this Act a definite obligation to send copies of these reports to every member of the Oireachtas. He is not merely concerned with Senators but with members of both the Dáil and Seanad. In reply to that the Minister said he did not know what the procedure was in regard to circularising Deputies and Senators with documents.
I want to suggest to the Minister that what is involved in this case is to get a certain number of envelopes. Get an equal number of reports. Get the correct names and addresses and put one on each envelope and then put a report in each envelope and post the envelopes. He can leave it to the employees of the Department of Posts and Telegraphs to do the rest. That is not a very strenuous obligation, but as Senator O'Reilly pointed out it may well be that these reports will be certainly unusual. They will be a new thing in our experience. They may be of particular importance.
I suggest to the Minister that there cannot be any serious objection to accepting the responsibility which Senator O'Reilly wants the Minister to accept and to accept it by allowing this amendment to be included in the Act.
Senator O'Reilly might amend his amendment and put in it that the Minister shall make available a sufficient number of copies of the report for despatch. The Minister should make sufficient copies available and the staff will send them out.
The Minister must deal with the Seanad as a House of the Oireachtas and not as a collection of individuals.
We have listened to frivolous arguments and complaints, but I suggest that Senator O'Reilly's amendment should be called nothing else but frivolous. We are asked to execute something which has not been in operation since the Oireachtas was established, a new procedure altogether. I do not know for what purpose we are asked to do it. We get quite enough documents from the Oireachtas from the office here.
I thought somebody might say that.
Much of what we get is not read at all.
The Deputy should speak for himself.
We cannot overtake all the things we get and if we get every report in connection with this measure a great deal of them will be thrown in the waste-paper basket. Senator O'Higgins was just as frivolous as Senator O'Reilly and, of course, in a typical O'Higgins way——
On a point of order. The Senator misunderstands me.
I know the Deputy too well.
No one, even by an Act of Parliament, could compel the Senator to read.
I did not get that. In a typical O'Higgins way the Senator mentioned the 11 men nominated by the Taoiseach. That is just typical. There is no other Senator in the House who would have said that. Senator O'Reilly should examine his company.
There is one aspect of this matter about which I am concerned. I wonder will copies of the report be made available to the Stationery Office so that members of the general public can buy it? Do I understand from the Minister that copies of the report will be made available to members of the Seanad who ask for it?
There is legislation which deals with that matter. So far as the Stationery Office is concerned the law requires that all documents published by the Stationery Office must be available on charge to the public. It is the people in the Dáil and Seanad offices who arrange to get from the Stationery Office the number of copies required by members of either House. The Minister must deal with the Houses of the Oireachtas as a unit as such and not with individual members.
Amendment put and negatived.
Section 8 agreed to.
Business suspended at 6 p.m. and resumed at 7 p.m.
NEW SECTION.
I move amendment No. 10:—
Before Section 9 to insert a new section as follows:—
(1) If as a result of the report of the commission the Minister decides to make an Order he shall not make such an Order unless he gives three months' notice in writing to the person, persons, firm or firms against whom such an Order is to be made informing them of his intention to make such an Order.
(2) Upon receipt of such information from the Minister that such an Order is to be made such person, persons, firm or firms can, if they so desire, appeal to the courts against the Minister's decision.
(3) Any such Orders shall not be brought before either House of the Oireachtas until a decision is given by the courts on such appeal.
The purpose of this new section is to give firms or persons who have been informed by the Minister that he proposes to make an Order against them, an opportunity of appealing to the courts against the passing of such an Order. I am quite sure that from the legal point of view this section of mine is invalid, because I do not know very much about the law and how to word it, but the idea I had at the back of my mind was that in this Bill there is nothing to save the ordinary firm or person from conviction by the Minister with a strong Government Party behind him at any time.
The firm or person has no means of redress, and no right of appeal if that person or the firm with which he is associated is found guilty of an offence under the Restrictive Practices Act. I am trying to give an opportunity to such firms or persons who are, as a result of the report of the commission, liable to have an Order made against them, of going to the courts to bring an injunction against the Minister to stop the Order being put into operation until the court is satisfied that the Minister is justified in passing that Order.
I do not know how to get over the difficulties I have mentioned and they constitute the objection which a great number of people outside have to the Bill, inasmuch as there is no right of appeal whatsoever in the Bill for anybody except to the commission themselves. The allegation was made, the firm or person concerned having been tried and found guilty, and then the report is made to the Minister and the proposal and Order issued, all by virtue of the fact that up to now the Minister in power will have a large Government majority. It is farcical that it has to go before both Houses of the Oireachtas before it can become law, because there is no trouble whatsoever for any Party in power implementing any Order which the Minister of the time wishes to pass. So there is an inherent danger that we are giving Ministers too much power. The common people have a tremendous faith in the judiciary and I would like to know that the courts would be able to intervene on behalf of anybody, whether guilty or not guilty of an offence.
A similar point was made in the other House. I have not read the discussion but the Minister did not accept it too easily and I am only bringing it forward now because I think it is a dangerous precedent to give to any Minister the power which he has in this Bill and under which he can arbitrarily decide that a firm or person is guilty of contravention of this Act. I hope that the mere Party point of view will not be stirred up on this matter, because it is far bigger than a mere Party matter and is giving power to the Minister to get through Parliament an illegal enactment which affects the life of individuals who have no right of appeal or recourse to an appeal.
This does not, to my mind, in any way reflect upon the present Minister or any Minister as such nor is it meant to do so but I was rather astonished that associations such as the Association for Civil Liberties did not pass some comment on this section from that point of view. The section does rather interfere with the rights of the people and their rights to carry on their business in their own way. It can make or mar a person's life and livelihood and before such powers are given to the Minister some right or power should be given to persons or firms to appeal against it. This is a case in which I want to have the section fully discussed. I am not quite happy about the amendment or the way it is put but I do know exactly what is at the back of my mind with regard to it.
This, so far as I am aware, is the first Bill in which the right of appeal to the courts is not given to the individual. He has no right to go to the court to test the validity of the decisions of the commission. I can at the same time see the Minister's side of the case and the one which he will probably make that the adoption of such a course will slow up the process of investigation by giving the courts power to interfere. I think when the liberty of the individual is concerned we should do everything possible to safeguard the rights of individuals and firms and I hope that some method will be embodied in the Bill to give that right of appeal.
I would like to say that some of us who criticised this Bill are under no illusions whatever about it. There is, however, a right of appeal, an absolute right of appeal for anybody who may be convicted of an offence under this Act. If that right were not there we should not have criticised this Bill in the way in which we have done. I think that Senator O'Donnell has got a little bit confused between the provisions under which the Minister may make an Order which is not law until it is passed here and an appeal when it is law. I think that ther should be no misunderstanding; we on this side of the House do realise that as far as the individual is concerned there should be an appeal.
I think that Senator O'Donnell has completely misunderstood the functions of the courts. I think if we were to give the courts power to determine whether legislation is desirable which is what Senator O'Donnell's amendment aims to do that would be unconstitutional anyhow. The courts have no function whatever to decide on the need for legislation. Their sole function under the Constitution is to interpret and deal with the law after the Oireachtas has declared it. Therefore, the courts cannot and should not come into the picture until an Act is passed by the Oireachtas. Then they have the function to determine that Act and to decide in any case whether the provisions of that Act have been contravened. The arguments of Senator O'Donnell and his fears appear to be based on the weaknesses of democracy rather than on the weaknesses of the Bill. It cannot be a dangerous precedent to give the Oireachtas power to make laws. That is the only way in which democracy can function. It is true the House functions under the Constitution, and if we pass a law contrary to the Constitution the courts can invalidate that law. That is in fact the only way in which the courts can act in these matters. The only way in which the people can take action in regard to such matters is at a general election and not otherwise.
I fully sympathise with the Minister and his point of view that the courts cannot enter into the legislation of the Oireachtas. But the point I want to make is that the Minister can pass this Bill by reason of the fact that any Minister in power can have a parliamentary majority and under any such Act passed by both Houses of the Oireachtas the individual or firm has no right of appeal anyway. I think that that is unfair. I think that after a report is made to him and before the Minister makes an Order a firm or an individual should have some right of appeal to somebody before the Order is made so that he could make a case to show why the Order should not be made by the Minister. If such appeal could be made in the courts and they decided against the individual there is no reason then why the Minister should not make the Order.
That is asking the courts to declare what is public policy in these matters and that is our function as legislators and not theirs.
I think this is a foolish amendment. Never before have I listened to a member of the House get up and say in so many words that the courts should be given power to interfere in legislation or the passing of Acts.
It would seem to me in this amendment that the courts were being asked to do what should be done by the Oireachtas. If the commission has heard an inquiry, having heard all the evidence and made a report to the Minister and the Minister makes an Order then it would appear, if we were to accept this amendment, that the courts were to be asked to inquire into the whole matter again. Does that mean that all the evidence given before the commission should be heard again before the courts and that the courts should be asked to decide that the decisions of the commission were not properly based on the evidence before it, and if not then why?
Take for example if there was some such provision that there was to be this appeal then who would pay the cost of the proceedings? If these matters were to come before the courts they could take probably six weeks in the High Court and four weeks in the Supreme Court which would cost probably something in the region of £10,000. There may be some corporations that could afford that but there are very few concerns in the country which could afford to spend that amount of money on such cases.
My difficulty is that I do not know what is in Senator O'Donnell's mind in this matter. What are the courts being asked to do or how under this Bill are the courts going to operate? I think these are matters on which Senator O'Donnell could have provided us with some information. It should not be difficult for him to so frame his motion as to give us that information. It should not have been difficult for him if he was unable to frame the motion properly to have one framed by a lawyer who would advise him as to how it should be done. To suggest that the individual has no right of appeal is nonsense. I think it is made perfectly clear in this as in any other measures that there is always an appeal on a point of law. I have never heard any suggestions anywhere about this being an interference with the rights of the people. I must agree that this is a very woolly amendment, and indeed it is a very childish one.
I may not be quite as intelligent as some of the people here and I cannot help that but it does seem to me whatever way I may interpret matters myself that we should have some right of appeal in these matters. This is a Bill which has as its basis a commission created from this House and appointed by the Minister. It inquires into certain alleged practices and makes a report to the Minister and as a result of that report the Minister, if he so desires, makes an Order and brings that report to the two Houses of the Oireachtas and it then becomes law.
Not so easily as that.
I am concerned purely with the machinery of the Bill at the moment. Up to that point the firm or person concerned has no right of appeal to anybody else on the question of whether the evidence has been wrongly interpreted or anything else. I say the judiciary should examine the evidence. It should have the right, if a firm appealed to it, to say that the evidence was false and it should be able to exercise that right before the Minister comes to either House of the Oireachtas to seek approval for the Order he has made.
Before the amendment is withdrawn, I should say that, if I understand it, the purpose is to set up the courts as a fair trade commission. It wipes out, as far as I can see, the fair trade commission. Suppose an appeal is made to the courts, they will be required to decide one way or the other what function has either House of the Oireachtas in the matter. When we say "an appeal", it is not an appeal from any law but an appeal from a proposal of something that may become law after the Oireachtas has had a chance to discuss it. But I think it is only fair to say that if any proposal brought before this House was of such a nature that the majority of members, no matter where they sat, felt that an injustice was about to be perpetrated by it, there are some of us voluble enough and energetic enough still to oppose it effectively.
If this principle were to be accepted, would Senator O'Donnell agree that to be consistent the Oireachtas would have to forbid the Minister imposing tariffs, which in almost all cases affect the lives of peoples—and more often than not have a deleterious effect—unless the courts were first to approve of them? There is a distinct parallel there. It is a complete analogy.
Obviously Senator Hartnett does not know that the Minister is precluded by law from imposing certain Orders as it is. Despite all the arguments I have heard, I think myself that where groups of people or firms or individuals are subject to a decision of the Oireachtas or of the Minister there should be some right of appeal. There are plenty of other Bills where this right of appeal is given and where the final power does not rest with the Oireachtas or with the Minister. I am, I may say, glad to see the champions of liberty fighting against something which I think is a threat to the liberty of the individual citizen.
An Leas-Chathaoirleach
Is the amendment withdrawn?
Yes, under protest.
It is either withdrawn or it is negatived.
An Leas-Chathaoirleach
Does the Senator wish to withdraw the amendment?
Yes, I have no alternative.
Amendment, by leave, withdrawn.
SECTION 9.
I move amendment No. 11 :—
In page 3, sub-section (1), line 57, to delete "by Order" and substitute "prepare a draft Order which will".
Amendments Nos. 11, 14, 15 and 16 really go together and perhaps you would allow the Committee to discuss them together, a Leas-Chathaoirleach.
The procedure contemplated by the Bill is the setting up of a fair trade commission which makes an investigation and reports on that investigation to the Minister. If the Minister agrees with the report or with any part of it he makes an Order based on that report and then under Section 9, sub-section (3), that Order has to be confirmed by an Act of the Oireachtas before it has the force of law. It would appear to me—and the Minister's speech confirms my view—that if the Minister desires he may make an Order and refuse to accept an amendment to it, so that neither House of the Oireachtas has any alternative but to accept or totally reject it. My amendments are designed to change the Order into a draft Order so as to allow it to come before either House of the Oireachtas and become an Act either with or without amendment.
The main point of my amendments is whether this Order made by the Minister should be incapable of amendment or should be such as can be amended. The Bill in itself was made acceptable to a great many people by the fact that it contains a provision that the Minister's Order would not become law until it has been put into an Act of the Oireachtas. There are, of course, other methods of doing this. One common one is that whereby the Minister makes an Order and it has the force of law after being approved by resolution of both Houses. Another method is that whereby a Minister makes an Order and unless it is annulled in a certain number of days it has full force and effect. In this particular case the Minister proposes that it shall be put into an Act of the Oireachtas. I am concerned to know what procedure he means to adopt.
There are no principles by which the commission may be guided. As the commission, particularly in the beginning, will be entirely without guidance and will be giving its own opinions as to what is unfair, unjust, contrary to public interest, and so on, the Bill which will be brought in to confirm the Order should be such that the Order itself could be discussed by the two Houses of the Oireachtas and amendments could be proposed to it. It will presumably concern a considerable number of people and will be based on opinions and it will undergo considerable investigation by people who have special knowledge.
I feel personally—I think the Minister does not agree with me, as far as I understand his concluding speech on the Second Stage—that the best kind of procedure would be the procedure followed in Provisional Order Bills, whereby a very short Bill is brought in after an inquiry and a Provisional Order is attached to the Bill and that goes to a Joint Committee of both Houses. I think that such Committee procedure is much better for this kind of thing where special interests are involved and where detail is involved, than a Committee of the whole House either in the Dáil or here. Therefore, the proposal I make is that we should make provision in the Bill that a draft Order by the Minister must be confirmed by Act of the Oireachtas, but sub-section (3) of Section 9 should read:—
"A draft Order prepared under this section shall not have effect unless it is confirmed by Act of the Oireachtas but, upon being so confirmed, with or without amendment, it shall have the force of law in accordance with its terms".
The Bill is not the same as a Confirmation of Duties Bill, where the Minister, in accordance with accepted policy, has power owing to special circumstances to impose a new tariff or alter a tariff and where, within a certain time, he must get confirmation by way of an Act. In that case, the Oireachtas has no power to alter what the Minister has done, but can reject or set its seal of approval on what has been done, within a certain period of time.
Here we are on a new path and the whole idea that these Orders must become part of legislation will lose its value if they are simply to be scheduled a Bill and taken as a whole and passed. We know that in that particular case the Party machine will work and the Minister's Order will in every case be confirmed. Particularly in a Bill of this kind, where we are entering on a new field or an uncharted sea, it would be better if the Minister made a draft Order based on the report of the commission, had that draft incorporated in a Bill and when that Bill was going through the Dáil and the Seanad the Order itself would be subject to amendment. I accordingly propose that that should be done.
I would like to support this amendment or at any rate the principle underlying it. Senator O'Donnell had rather a bad time on his last amendment. I disagreed entirely with his amendment but had a certain amount of sympathy with him. to the extent that he was trying to voice a perfectly genuine fear which exists that an Order made under this might inadvertently have the effect of penalising a particular individual or firm in some way or other doing an injustice. Any kind of appeal to the courts is, as we agree, completely absurd. It would remove that fear to a very large extent if it was known that, if something inadvertently creeps in which is unfair in one of these Orders, there are 60 members of this House and 147 of the other House who can be approached and who can draw attention to it by way of amendment.
Perhaps I am too long in public life to worry about the Party machine. What I am bothered about is that many members will vote for a Government Bill rather than put a Government out of power even though they may feel there are mistakes in the Bill. Everyone should be free to propose an amendment and see that it gets fair discussion and is properly examined. It would be most disastrous and it would defeat a good deal of the good will I hope to see for the operation of this Bill if an amendment to an Order can be ruled out of order in either House on the ground that the Order made by the Minister can be only approved or rejected. It should be possible to indicate in some form that it is approved subject to such and such an amendment.
If the Government want the Order unamended, the Party machine will see that it is carried—I am not worried about that—but I want to presume the right that an individual can bring up what seems to be a mistake in such an Order. I do not know whether a confirming Bill under the Imposition of Duties Act can be amended—I do not think it can. Therefore, that is not what we want. There the case is different, as they are confirmed nine months afterwards and if there had been a mistake of any kind the Minister himself would probably have adjusted it within the nine months. It is nearly always nine months before the Order is confirmed. In this case we are confirming the Order before it becomes law.
I would appeal to the Minister sincerely that in the interest of good will towards the operation of the Bill he should, by accepting this amendment or in some other way, provide that the Order will be in a Bill in such a way that the Order can be amended without the withdrawal of the Order if the Oireachtas thinks fit.
We are old enough now to know that amendments could be made if you convince a particular Minister of the day. Some Ministers can be convinced; I do not politically agree with the present Minister, but he is probably the most easily convinced if you have a strong case. With the procedure as proposed in the Bill, even if you make an extremely good case, it will not be easy to persuade a Minister to eat humble pie and withdraw an Order and bring in another. For that you would have to prove an extremely important mistake. The Minister might draft an amendment with the same effect, in the interest of the smooth operation of the Bill.
As Senator Hayes has said, this Bill could have appeared in a number of different forms. It might have provided for the common procedure of Orders made by a Minister being annulled by a vote of either House of the Oireachtas. In many Bills the Minister is given power to do things by Order and the Orders must be tabled and may be annulled by resolution of either House. It might have appeared in a more positive form which would require an Order made by a Minister to be approved by resolution of both Houses of the Oireachtas. There are many Bills of that kind also, where ministerial Orders do not come into force until approved by resolutions in both Houses.
This goes further than that. It requires the Order made by the Minister to be confirmed by legislation. I decided on that course because I felt that, embarking as we were on a new field of legislation, we should put behind these Orders the authority of the Oireachtas in a very positive and definite way. However, it would destroy the whole conception of the Bill to provide that these Orders should be subject to discussion and amendment in detail by the Houses of the Oireachtas. If that were to be the procedure, all Sections 8, 9 and 10 of the Bill could be deleted altogether. All we would need would be an Act to establish the commission, with the ordinary type of Bill, going through all stages in both Houses of the Oireachtas, introduced when, following the report from the commission, the Government in office decided that legislation was required.
What would happen if that procedure were followed? It would mean that the Houses of the Oireachtas, or a Joint Committee of the Houses, would be going over all the ground the commission had covered and doing so in circumstances which would almost certainly mean that the pressure of vested interests directed against them would make it difficult for them to confirm in full the conclusions which the commission had reached.
There is no suggestion in this Bill of trying to slip into the law unnoticed some provision which would be detrimental to private interests. Every possible device to ensure publicity and notification of intention has been adopted. A public inquiry is held after due notice, a public inquiry at which every trade interest concerned with the commodity under investigation can be represented. Following that public inquiry, a report containing the observations of the commission on the circumstances prevailing in a particular trade and its recommendations as to what should be done about them is published, and, after it has been published, a Bill is prepared if the Minister decides that legislation is necessary, for submission to the Oireachtas. There is no possibility that any interest affected by any such inquiry or legislation can have something done to its detriment without its knowing about it in advance. It will have ample time in which to make any representations it thinks are appropriate to the Minister, in the first instance, before he makes his Order and to the members of the Dáil and Seanad before the Order comes to them to be confirmed by legislation.
These Orders should stand as a whole and the Houses of the Oireachtas should have the right to accept them or to reject them, but not to amend them. If we give the Houses of the Oireachtas power to amend them, there is no point in having all this other procedure. Why have an investigation by a commission, if the Houses of the Oireachtas or a Joint Committee of both Houses are to go over that investigation again, dealing with every minute detail of an Order designed to eradicate unsatisfactory conditions in particular trades?
I have no illusions about the power which vested interests can exercise in matters of this kind. Senators who have seen the Lobbies below crowded by the representatives of different trade associations when some matter affecting the interests of these associations is under discussion will know precisely what I mean, and I am quite certain that when any measure which is likely to break up some profitable trade ring is brought forward, every resort will be adopted either to get the Minister to modify the recommendations of the commission in his Order or to get the Oireachtas to reject the Minister's Order if that appears practicable at all.
I would also urge the rejection of this amendment on the grounds that it means an indefinite protraction of the whole procedure which the Bill contemplates. The aim would be to have a one-clause Bill such as appears periodically before the Oireachtas in relation to the confirmation of Orders imposing customs duties or control of imports Orders—a one-stage Bill leading to one debate and a decision as to whether the Order should be made or not in each House. There is ample provision in the Bill for the amendment of an Order by the same procedure, if the commission comes to the conclusion on investigating its workings or hearing the representations of affected interests that amendment is required.
In this matter, I do not think we should agree to the amendment of any Order recommended by the commission without giving the commission an opportunity of going through the inquiry procedure in relation to the particular matter in its recommendation to which objection is taken. I strongly urge that the amendment be rejected. I think the safeguards provided in the Bill are ample and if we are to do anything at all in any reasonable time towards the elimination of undesirable trade practices, the procedure contemplated in the Bill should be maintained. We are dealing with practices which have been fully investigated and deemed to be undesirable and contrary to the public interest. We are no longer dealing with restrictions which may be justified on the ground of their effect upon distribution costs, efficiency or any other ground. We are dealing with practices which have been investigated and have been held to be detrimental to the public interest. It is only to eradicate such practices that an Order would be made and confirming legislation in relation to it would appear.
I have the feeling that if I brought the Bill in with the standard type of clause in it, requiring an Order made by the Minister to be confirmed by the Oireachtas, it would have been regarded by many Senators and Deputies as a sufficient safeguard, as an adequate procedure, to maintain the right of the Oireachtas to check on ministerial actions. The fact that we have gone farther than that and require confirming legislation should, I think, meet any reasonable objection which might be voiced, but if we are to go the whole way and have every section and every word of every Order liable to debate and amendment in either House of the Oireachtas, any one of these Orders will take at least the same time to enact as the main Bill itself has taken. I think that would create such public disgust that it would be better not to tackle the matter at all. If we are to eradicate undesirable trade practices, restrictive trade practices, we should tackle them in a way which suggests that we are in earnest and that will convince the public we are in earnest, or else we should leave them alone.
The ordinary public discussing a Bill of this kind will say that no Order made under this Bill can be made operative until it has been passed through the Dáil and Seanad. That is what appears to be in the Bill, but in fact what is in the Bill, according to the Minister, is that once the Dáil in one debate passes a Bill containing the Order through all its stages, that is the end of the whole business. The Minister heightens the picture of the Dáil and Seanad discussing an Order and one notices at once that the people he proposes to appoint on the commission will be reasonable people, but that the people in the Dáil and Seanad will be most unreasonable. The people in the Dáil and Seanad, according to the Minister, will discuss these Orders ad nauseam, will go into every corner, into every nook and cranny, spelling out all the words and take as long to pass the Order as they are taking to pass this Bill. But there is no proof of that at all, and probably it would not be so.
Similarly with regard to vested interests. Surely it is not suggested that the Dáil and Seanad are such that, when a public inquiry has been held, when, after a public inquiry, a commission appointed by the Minister has decided that a restrictive trade practice of an unjust character and detrimental to the public interest has been proved and when the Minister has accepted that, the Dáil and Seanad can be influenced by lobbying to annul all that has been done already.
They can always annul it.
To amend it so as to take some of the efficacy out of it. That is an injustice to the Dáil and Seanad and there are enough injustices being done to politicians and parliamentarians without the Minister joining the band. There is another point to be considered. If the Minister had taken one of the other courses open to him, the Seanad would have more power than it has under the Bill. He might have taken the course of saying that he could make an Order and that it would not become operative until passed by both Houses. In that case, if the Seanad refused to approve of it, it would not become operative at all.
If it were an Order which became operative if not annulled it could be annulled within a certain period without prejudice to what had gone before. In either case the Seanad would have more power. It is a reasonable safeguard to say that an Order made may be considered, for example, by a Committee of the Dáil or Seanad. It is not correct to say that in matters of this kind the Dáil and Seanad have proved to be unreasonable. In fact, they have not. People can be unreasonable in certain matters about which there is political heat but Committees, either Special Committees of the Dáil or Seanad or Joint Committees of both Houses, have, I think, proved to be reasonable in almost all cases. They do not indulge in any fireworks. They do not make lengthy speeches and very often they do quite a substantial, sensible and a reasonable job of work. There is no reason to think that in this case these Committees would not be just as reasonable. The two Houses would be just as reasonable as they often are on matters which do not involve Party politics.
In this case the Minister does an injustice to everybody including himself when he argues that vested interests who had been proved by the commission to be in the wrong would be able to influence a majority or a substantial minority of the members of the Dáil to endeavour to take the good out of an Order which was going to operate against an unjust restrictive trade practice. The truth is that Section 9 of the Bill—I suspected this myself when I read it—is so drafted as to make it appear that these Orders will have to go through the ordinary process of legislation when, in fact, they may not have to do any such thing.
I think the Minister is making a mistake. There would be much more likelihood of this Bill working when it became an Act and of the Orders getting a much better discussion if it were possible to amend them. Contrary to what the Minister thinks, it seems to me that a person who would put down an amendment to an Order of that kind would have to have a very good case. He would be speaking in public, as he would be charged with speaking against the public interest, and he would not do it unless he had a fairly good case. Improvements have been indicated particularly in this House as against the other and points have been made which Ministers accepted without letting the matter go to a vote at all. It seems to me that this whole procedure against unjust trade practices would have a much better chance of success if the Bill were so drafted—I have no particular admiration for my own drafting—but it could be made quite clear, when an Order was made that it would have to go through the legislative processes and could be amended. If that were so in a great many cases the procedure contemplated by the Minister would take place. It takes place every day we meet. We had two or three examples in this House last week. The other House does it also. I think the amendment is a very important one and I would like to see the Minister accept it in principle at any rate.
Would the Minister tell us what argument could be made against the proposed amendment of an Order that it would not be possible to make against the Bill when he brings it in? I do not think there is anything in that point at all. I think it is possible for any member of this House, when a Bill is introduced, to make all the arguments that one would be in a position to make when you were trying to amend an Order.
I think the Minister knows quite well that in a matter such as this there is no Party feeling at all. The people on both sides of the House must be equally interested in trying to get legislation through that will be regarded as reasonable by all of us. I do not see why the Minister could not take his courage in his hands in connection with this matter. It would be much better to feel that you had the backing of everybody in this because I think it is going to be difficult. I do not think at all that the people who have a grievance about the proposed legislation, if the grievance is proved to the extent that it is necessary to legislate against them, will succeed in their lobbying tactics. If there are people against whom the Minister has to make an Order here these people will find a way of ventilating their grievances if there is a sense of injustice rankling and they are able to communicate that feeling to the members of this House.
I think the Minister ought to visualise the position he would be in when he is on the opposite side of this House. The Minister may not occupy his present seat when this measure is being implemented but he is passing on an instrument to his successor. The Minister, when on the opposite side of the House, would like to see that justice was done and would like to have an opportunity, when an Order was introduced with which he did not agree, of being able to amend that Order. It is much better to amend the Order and have the opportunity of doing so than be in a position of feeling that there was no use talking about the matter once the Minister made up his mind. In fact, from what the Minister told us once the Minister makes up his mind about the Order he need not come into the Oireachtas at all.
When he says he will put it through that is the end of it. It would be much better if we all approached this matter in a reasonable way and provided machinery which would be responsive to wise handling. We are creating an instrument that will have to be handled very carefully if we are to avoid trouble.
The Senator did not appreciate the procedure at all. I think this also applies to the remarks of Senator Hayes. All the publicity will have taken place before an Order is made. There will have been a public inquiry. There will have been a report from the inquiry, a report which will say that in a particular trade undesirable practices are rampant and that action should be taken to eradicate these practices along the lines recommended by the commission.
I want the House to visualise the publication of that report and to appreciate that immediately following its publication there will be a demand for action along the lines recommended by the commission. The public having been told about these undesirable practices in a particular trade and having seen the recommendations for their elimination, will be expecting something to be done at once. That is what the Bill provides.
The amendment contemplates that a protracted process of legislation should then begin which will involve every provision and every detail of that Order being the subject of debate and discussion and possibly of amendment in both Houses with the certainty that the interests affected by the Order will have every interest in suggesting amendments delaying the enactment of the measure and generally trying to make it ineffective if they can by persuading either House of the Oireachtas to depart from the recommendation of the commission.
The recommendation as to the action taken should initiate from the commission and we should confine ourselves to deciding whether the action along the line they recommend is to be taken or not. If we decide it is to be taken, then we should decide to do what the people who held the inquiry recommended. The members of the House would never have the same knowledge as the commission itself had in making the recommendation. Once the body of men who conduct the inquiry recommend a certain course of action, we can, if we wish, decide not to do what they have recommended, but we should not attempt to patch their recommendation by conducting some far less satisfactory process of inquiry of our own.
I feel that this is a very important constitutional amendment which cuts to the foundation of the whole of this Bill, and I would like to support the amendment. I think that the difficulty in the debate which has taken place in the last few minutes is that the Minister and the supporters of the amendment have approached the matter from different points of view. The Minister is concerned with showing how the Bill safeguards all the people whose rights might be affected by the Bill. I think that the people in favour of the amendment are concerned with safeguarding the rights of the Dáil and Seanad and, speaking on it from the constitutional viewpoint, are not so much concerned with the people who might be affected under the Bill as with the rights and privileges of members of the Legislature. When the Bill was being taken on the Second Reading the whole question of the rights of the Dáil and Seanad having the final word in this procedure was discussed, and I stated and believed very strongly that the Minister was right in his instinct in this matter, which was to preserve to the last the right of the Dáil and Seanad to legislate in this very experimental and possibly very dangerous way. The Orders which would be made by the Minister on the recommendation of this commission are very experimental.
As I stated on the Second Reading the tribunal will have to decide very difficult questions of fact and law and very difficult questions of public policy. The Minister will then have to make an Order embodying the conclusions on this very difficult discussion. The Orders which are made by the Minister will have very widespread repercussions over the whole of the business life of the community, and some of them may be directed against particular groups of traders or even against particular businesses. Therefore, this type of legislation, to some extent, is almost in the nature of private Bills where Orders can be made affecting individual people. Existing old and well-established trade practices may be attacked in this way and everybody should be allowed to defend themselves up to the last minute in matters of this kind.
The Bill, on the face of it, preserves the sovereignty of the Dáil and the Seanad in this very important matter. I have criticised, on the Second Reading, the Bill on the grounds that the proceedings were dilatory, but I went on to say that I thought that the dilatory procedure was a lesser evil than rushing things too much. Where important interests were affected, it was the lesser evil to have delays than precipitate action which might cause injustice. The procedure under the Bill takes place in three stages: first of all, investigation by the commission; secondly, the making of the Order by the Minister and, thirdly, the ratification or rejection of that Order by the Oireachtas. At the first stage, namely, discussion by the commission, considerable powers of discretion exist.
The commission has the widest terms of reference, and the Minister has emphasised the great degree of publicity and discretion which it will have. Under the Bill the Minister has a considerable amount of discretion regarding the type of Order he will make. When the report of the commission comes to the third stage—the discussion in the Oireachtas itself—the Oireachtas, which is the constitutional and more important personality than either the commission or the Minister, finds itself tied, is reduced to saying yes" or "no" and becomes a rubber stamp.
In a Bill which is so very largely experimental, where the terms of reference are so very vague, in spite of the directions in the Second Schedule, and where so many interests of all kinds in the community may find themselves closely affected by Orders of this kind, the Legislature should not lightly surrender its rights to investigate these matters in the fullest possible detail. The commission, no doubt, will exercise its functions seriously, prudently and well, and the Minister will equally make Orders in the best light of his judgment and ability, but at the same time nothing is perfect, and I really do not see any point at all in bringing these Orders to the Dáil and Seanad if it is just to be a mere question of being a rubber stamp there.
It may be very valuable, indeed, for these Orders to be amended in the light of all sorts of considerations which might be raised in this House and on a different level from that at which they would be raised in the commission. The Government itself should be glad of having an opportunity of mending its hand in this way. According to the present arrangements even the Minister himself cannot amend the Bill, and if he wishes to change it, the whole parliamentary machine goes into action, and he has to make an Order, and the whole thing starts again.
If there were intelligent discussion in the Dáil and Seanad on these far-reaching measures which affect the community, the Minister himself might wish to introduce an amendment of the kind with which we are familiar, but, under the present procedure, even he cannot do that; the whole thing has to stop and be jettisoned, and he has to start all over again. Every criticism made against the Bill on the grounds of dilatoriness and delay is accentuated.
Speaking from the point of view of the Oireachtas itself and the point of view of our duty to safeguard the interests of the people, we should insist, when the Minister states, as he has stated, that he is not going to impose obligations and duties on the country or the people without the consent of the Legislature, that that consent should be a reality and not a rubber stamp. That is why I do press the Minister to reconsider his decision on this amendment.
I support the amendment, and had thought that the Minister would have readily accepted it. I thought it would enable him to find a solution to the difficulty he might find himself in in endeavouring to have the report accepted in its entirety in a case where the Oireachtas was against him. As the Bill stands at the moment, either the Minister gets a whole report or no report, and if he accepts these amendments the Minister can have the report in an amended form. I am not impressed by the Minister's argument that it will mean a great deal of delay. The passing of Bills very frequently has incurred delay, and that cannot be avoided. The Oireachtas will be concerned with what the commission has done, and they will be concerned only with the Minister's Order and nothing else.
I believe on some of the amendments the Minister protested that all the time we will have the safeguard that the Dáil and Seanad would have to pass legislation giving effect to the Orders but it occurs to me having heard the Minister on this amendment, that the Minister doth protest too much. When we seek to ensure that the Dáil and the Seanad will have a full opportunity of discussing the details of the Order in accordance with the amendment submitted by Senator Hayes, we find that the Minister does not want to allow the Dáil or Seanad to in any way deal in detail with his report. We find that the safeguard to which the Minister referred is simply that the Dáil and the Seanad either accept his Order or they reject it. As has been stated earlier, the Minister of the day will not have any difficulty in having an Order accepted as he has prepared it. I think the amendment is quite reasonable from the Minister's point of view. It enables him to bring into the Dáil or Seanad a draft Order which he can have passed in the light of the views of the Dáil and Seanad on that Order. If he brings in an Order which the Oireachtas will not accept, he can, if he wishes, bring in an amended Order.
I must say that at the outset I was very much impressed by the case made for the amendment by both Senator Hayes and Senator Douglas but I think that the considerations which the Minister has put before the House have had the effect of converting me to his point of view.
The commission is being set up by the Oireachtas; the commission will hear all the evidence and if there is any member of the Oireachtas with a special knowledge in regard to any trade practice, he is at liberty to have that matter put before the commission by placing the information and knowledge at his disposal before the commission. He can do that by giving evidence in a particular inquiry regarding which he has specialised knowledge.
The commission having heard that evidence and the other evidence will give it the most careful and deliberate consideration. They will make their recommendations to the Minister and on the basis of that recommendation the Minister will make his Order if he so decides. I think the Minister is right in saying that if we give both Houses of the Oireachtas an opportunity of deliberating on the whole matters all over again, going over the whole ground in its entirety, it will mean that the work of the commission will, to a large extent, be superfluous. The Oireachtas cannot decide as the commission could whether the witness in his evidence which is recorded was a truthful witness or an evasive witness. We must assume that the commission will have the talent to make that decision.
Senator O'Brien made a number of statements that people should be allowed to defend themselves up to the last minute. Of course, that is not a principle of law prevailing in our legal system. If somebody has been found guilty by a jury of 12 men no matter how stupid those 12 men may seem to be, there is no appeal from their verdict. I am quite sure that Senator O'Reilly and myself have felt that juries have reached what appeared to us to be very stupid decisions. Nevertheless those decisions stand and there can be no appeal from them to the higher courts except purely on a point of law, that is, that the judge misdirected the jury or something of that kind. But it is a fundamental principle of law that there must be some finality and if the facts were to be brought from court to court there could be no finality.
Similarly, in a case such as this, the final protection of the citizen must lie in public opinion. If the commission acts in a manner which is patently wrong, public opinion will be brought to bear on it through reports in the newspapers and otherwise. In the Oireachtas, if matters were to come before them from the commission and debated by the Oireachtas word by word and line by line there would be a delaying process which, I think, would not be in the public interest. I do not see that any point will be gained by raising again in the Oireachtas things which were raised before the commission. If, as I said earlier, there is anybody in the Oireachtas who has a special knowledge on any of these matters, he can place that knowledge before the commission. I do not accept then that there is any danger to the liberty of the people in the powers that are given in this Bill.
Up to the present, in the debate on this Bill, there have been differences of opinion rather than of principles but in the debate on this amendment it is quite clear that there are two clear and widely divergent views of principle. When the Minister spoke at the close of the Second Stage he used a phrase which left me suspicious when he said there was no point in keeping a dog and barking yourself. When I was young it was that there was no use in keeping a donkey and braying yourself. Probably that is the northern version of the saying. Whatever way you take it, that is not a proper definition of the commission that should be set up under this Bill. Might I again point out that this commission has two functions; one to ascertain the facts and the other to give opinions? I may have some sympathy with Senator Hartnett in so far as ascertaining the facts is concerned but in so far as the other functions of the commission are concerned, I am not in agreement. We are told that the procedure proposed here is to take away from the Oireachtas one of its important functions and it is a veritable farce to come to the Oireachtas and to say that it will pass an Act and that it cannot amend it.
According to Senator Hartnett—and I agree with him—in the long run public opinion is one of the greatest safeguards for fair play to the individual. But how is it to be expressed democratically? Surely through the members of the two Houses of the Oireachtas. The Minister does not want a detailed discussion on each Order, but how is public opinion to express itself properly and democratically if no member of either House is allowed to discuss the details? I also disagree with the Minister when he suggests that lobbying could be much worse and more objectionable if the Oireachtas could amend the Order rather than if the Minister himself could amend it. The Bill provides that the Minister himself may amend the Order.
Amendment of the Order would have to go through the same procedure.
But the Minister can amend the Order and can put it through in the same way with no discussion. I maintain that that is a denial of democratic principles, and it means that we are setting up a commission, not to be an instrument of the State to assist us in legislating, but something which, as it is in this Bill, is to be superior to us. Colour is lent to that by the—to my mind— frankly amazing suggestion by Senator Hartnett that any member can go before the commission to give evidence.
I said if he had special knowledge or information. I do not mean qua member of the Oireachtas.
With great respect, this House has to express an opinion and it is well to remember that there are quite honest differences of opinion as to what are and what are not unfair practices. With public discussion we will reach a general sense of what is fair, but that will take time. I believe one of the principal contributing factors to that is public discussion and the best place for that is in the two Houses of the Oireachtas. I think the Minister is quite wrong if he thinks that that right will be abused. As far as this House is concerned no matter what Government was in power, there has been a general readiness to give the necessary facilities, indeed almost an absurd reluctance to spend too much time discussing Bills.
On principle, I think this amendment should be inserted in the Bill. From a practical point of view it is even more important—if it could be possible for practice to be more important than principle. The public generally have been assured from all quarters that the one safeguard against the fears to which the Bill gives rise would be that an Act of Parliament had to be passed. If it is now generally known that the Act, in fact, will mean that an Order cannot be discussed or amended there will be great disappointment.
The best way to examine the amendment is to consider whether it is possible to work it. I think it is clear that it is not. If the amendment is passed we might as well chuck up the Bill altogether. Senator Hayes said that the two Houses of the Oireachtas could be counted on to be reasonable. He is possibly right, but it takes them an excessively long time to be reasonable. Consider the business dealt with in this House to-day. There are six Bills on the Order Paper and of these five were introduced in 1952. The Insurance Bill was introduced in the Dáil in October last. The Bill we are on now was introduced in the Dáil last July and the Bill we are going to deal with next was introduced last July also. The Bill to be dealt with after that, the Grass Meal (Production) Bill, is the only one that was introduced this year and quite a considerable time has been spent on it already.
These particular Bills, most of which are over six months old and some considerably older, have been going their way through the Oireachtas in what you might call a good part of the year, which is just ending now. Between now and the end of July the chances of getting any legislation like this passed are considerably less good because of the financial business in the Dáil. If, every time the Minister made an Order under the Bill, it had to be dealt with according to the ordinary method by which ordinary legislation is dealt with, it would be months, indeed years, before anything were done, and far from the public being satisfied with the safeguards, provided by the Oireachtas, they would throw the whole thing over and would regard it as mere lip-service from which nothing would be achieved and the whole purpose of the Bill would be vitiated.
The one thing that strikes me, particularly on the discussion on this amendment, is how many people who have nothing to do with business are now beginning to see grave objections to the Bill. It is very interesting to see people who cannot be charged with having an interest in maintaining restrictive practices now standing up and saying how dangerous the Bill is. This legislation imposes penalties on business people but gives no court of appeal. Senator Hartnett was quite right in much of what he said, but he forgot one important point when he argued that in the ordinary law courts the jury finds facts, and there is no appeal from that; he forgets the important facts that in a court of law the jury is under a competent judge, a qualified person who is able to give legal guidance and direction, and if the jury does find facts it does so under a competent authority. In this case, however, the people concerned are unskilled in the law of evidence, and it is only fair that any citizen should have some appeal from their findings.
The only appeal apparent in this whole legislation is an appeal to the Oireachtas itself, but unless this amendment is accepted, the Oireachtas has no power to grant such an appeal. It should be permissible to argue the case to the last court, the Oireachtas. Anybody charged under this Bill and convicted is subject to penalties of all kinds, and they should, in common justice, be allowed to bring their case before the Oireachtas itself. Apart from the constitutional rights and dignity of the Oireachtas, it should, in fair justice to the citizens, have full powers to amend any legislation in this section.
It seems to me that time is the most important factor in the arguments used against the amendment. But it seems ridiculous that this State, which has been in existence for 30 years, has suddenly awakened and decided that the law must be implemented to stop restrictive practices which have been going on for all of that 30 years. It is much more important, however, that justice be done. You have refused my amendment concerning the right of appeal to the judiciary, but I can seen no valid reason why the Minister should not accept this amendment from Senator Hayes.
This amendment suggests that somebody in the Oireachtas has a right to alter an Order. The Minister argues— and if I were Minister I would argue to the same purport—as follows: "I am going to make an Order arising out of a report of a commission which in itself is unerring because of facts which they produce and which are properly interpreted and I say to the Dáil and Seanad that they must accept that Order." The Minister does say that that is democratic control but his argument in that way is all wrong. Any Minister in power will be in power by reason of the Government majority and any matters he puts before them will get through.
It is a negation of democracy and is causing the uneasiness to which Senator Douglas refers that we are going to rough-ride legislation no matter how we do it. Time is the lesser important aspect of the Bill and I suggest strongly that the Minister should reconsider Senator Hayes's amendment, that he should accept it and that time will prove it was a wise amendment. The time may come when the implementation of a Bill of this sort may create a precedent that would have very disastrous results to the country generally.
I must confess the Minister's remarks came somewhat as a shock to me and to a much wider circle of industry than I myself represent. We all thought that one of the safeguards in this Bill, and which made it less obnoxious than it appears at first sight, was what we interpreted by the phrase "Act of the Oireachtas", that when the proposed Order from the Minister came to the Oireachtas itself, there would be then power to amend the proposed Order. Because of that, I would urge on the Minister that he should not hastily decide not to accept at least the principle underlying the amendment.
I can assure him and others speaking for industry that all of the organised industrial bodies with which I am connected, in their discussions on the Bill and on various sections, have assumed—and this will come as a shock to them, as it does to me now —that there was this safeguard of discussion in the Oireachtas and that implied power of amendment. Because of the fact, as already said by me and other speakers, that we honestly want to help the Minister in his underlying aim, we want to help him to eliminate what will subsequently be considered unfair and unreasonable practices.
Where we differ is how those qualifying adjectives are to be defined. If the Minister wants that wholehearted co-operation which is there if he co-operates with us, he should do something to allay this fear now about to be accentuated by the statement that there will be no power of amendment of the Order once it reaches the Houses of the Oireachtas.
I do not understand yet why the words were changed, using "Act of the Oireachtas" for the procedure previously adopted, that an Order is enforceable unless it is annulled by either House. I would draw the attention of Senators to the fact that, on a previous occasion, this House amended an Order that was on the Table of the House. It was in connection with war damage at the North Strand. It was amended after discussion here, in agreement amongst different people.
It was withdrawn and reintroduced by the Minister.
That is a great difference.
I am sorry, that is the way it should be put. Candidly, the fact of putting here "passed by Act of the Oireachtas" would better read "agreed by a vote of both Houses". The terminology is confusing. I have not yet been convinced why the same procedure should not be adopted as in other Bills. On the other hand, speakers who said that the elected representatives of the people have no power to discuss this must realise that, if they took only half the time taken for the discussion taken on Tulyar in the other House, it would have delayed the thing considerably. I think this is capable of being discussed in both Houses, and I feel that the same condition may be revealed as a result of these discussions, that would convince a reasonable Minister that the Bill should be altered. It is reasonable that a Minister would withdraw the legislation then and amend the Bill himself.
It seems to me it would create a difficulty, as in discussing clause by clause and line by line you could have delayed legislation certainly. The fact that it could be discussed by both Houses and passed or rejected in globo is not undemocratic. I hope that at some time we may be able to convince the Minister that a Bill which goes through, subsequent to the investigation by the commission and subsequent to the Minister's possible amending of it and bringing it before both Houses of the Oireachtas, would still be capable of suggestions to the Minister that such legislation could be altered. He may then withdraw, as happened in the North Strand Compensation Order, and reintroduce it. That seemed reasonable to me and yet why has it been changed in this Bill, introducing those words “an Act of the Oireachtas”, which certainly has led to confusion, as it would indicate that it would go through all the different discussions and readings as other Bills of the Oireachtas go through before they become Acts? It would be better if it were left in legislation that the Order laid on the Table of the House was of constitutional effect unless amended or annulled by resolution of either House.
If that line were adopted, we might not have had this lengthy discussion at all. I still say that the power of discussion in both Dáil and Seanad, even if it be a one-reading Bill, does give a reasonable Minister an opportunity to appreciate the opinion of the elected representatives of the people and gives an opportunity to a reasonable man— whoever may be in office—to become enlightened to the fact that it is a wrong measure and should be amended as the House suggests. That is democracy in action and would be still effective under the suggested phraseology here. However, I think it is a pity the other line of approach was not taken.
I would like to make a few observations, as I think there is some misunderstanding. Senator Summerfield could not have misunderstood the provisions of the Bill to the extent he says. No one familiar with our legislation could reasonably have been under the misunderstanding he describes. I did not need to get a Bill passed through the Oireachtas to enable me to introduce a Bill which could be introduced by the ordinary procedure. The reason a Bill is necessary is to sanction the procedure contemplated, the enactment of these Orders subject to confirmation by subsequent legislation. Neither is it fair to say that the procedure contemplated here involves an attempt to rough-ride an Order through the Oireachtas.
There is a public inquiry, a protracted public inquiry, which, no doubt, will get due publicity in the Press. There is a report of a particular kind, and I want to emphasise the character of that report to the Seanad. It is a report which will set out in detail the circumstances prevailing in any trade, and it will contain the opinion of the fair trade commission that, in a particular trade, an undesirable practice prevails, that a ring exists which is being used to secure the benefit of a vested interest to the detriment of the public. It is only after a report in that strain has been made that any subsequent action is necessary. They also recommend, having come to that conclusion, what should be done about it, and at that stage there is obviously going to be a great deal of public discussion and agitation about the circumstances prevailing in this trade.
The public will then know, on the authority of the commission, the conditions prevailing in the trade, and the extent to which they are detrimental to the public interest and they will be demanding action about them, immediate action—not action 12 months hence when the Dail has gone through the leisurely process of enacting legislation of the ordinary kind, but action without delay—because the report of the commission will have indicated the need for it.
An Order is made, and I want the House to appreciate the form that Order will take. It is set out in detail in Section 9. It is an Order which will prohibit specified arrangements or agreements, the withholding of any specified class of goods from a specified class of persons, the giving of specified preferences in regard to the provision of these goods or the imposition of specified conditions in regard to the supply of these goods. These are all set out in sub-section (1) of Section 9. The commission will recommend specific prohibitions on things they have found to exist and which they held were contrary to the public interest.
No Committee of the Seanad or Dáil could have the precise knowledge of the particular things that ought to be stopped which the commission would have after their inquiry. It would be on that precise knowledge, ascertained through an inquiry, that they would base their report and their recommendation to the Minister to make an Order prohibiting these specific things which they found objectionable in the trade concerned. The Minister makes his Order and it is now open to the Oireachtas to reject or approve that Order. I am urging that it should not be open to them to amend it. They could not possibly amend an Order without having available to them the precise knowledge of the trade concerned which was available to the commission which recommended it.
Senator O'Brien's remarks seemed to me to be based on the assumption that the Oireachtas will not know what form the Minister's Order will take until they see it in the Bill. The Minister's Order will be based on the recommendation of the commission, a recommendation which will have been published long before the Order appears before the Oireachtas at all, and a recommendation which will be the subject of public discussion and, no doubt, representation by any interest which thinks that the Order is unfair or unsuitable, having regard to the circumstances of the trade. The Minister's Order will either be based on the recommendation of the commission or will depart from it to the extent that these representations justify departure and to the extent to which he is prepared to defend departure from the recommendation before the Oireachtas.
The Order can be discussed fully and in detail here, but what I am suggesting is that the Oireachtas should not have the power to amend it in detail, because, if amendment is required, it should be made only after a similar process of investigation by the commission had shown amendment to be required. I therefore urge strongly that the procedure contemplated here should be followed. I cannot be moved and I am not moved at all by Senator McGuire's suggestion that this course is dangerous. It is certainly no more dangerous to enact legislation providing for the making of Orders of this kind than it was to give the Minister power to prohibit the importation of goods, to put tariffs on goods or to fix the price of goods, by Orders, some of which do not come before the Oireachtas at all. A procedure similar to that contemplated by the Emergency Imposition of Duties Act or the Control of Imports Act is reasonable enough and the dangers which have been suggested are very vague and far away indeed.
Somebody said that time should not be an important element in the case. I think that, once the commission has reported that it has found unfair restrictive practices to prevail in any trade and has recommended action to eliminate these practices, time is important, and, from the point of view of reassuring the public that the Oireachtas is serious in its intention to eliminate them, time is a most vital consideration.
I am as much opposed to unfair and unreasonable trade practices against the public interest as the Minister, but I am not opposed to the Oireachtas and fundamentally the Minister is. As I said on the Second Reading, the Minister wants to get done what he wants done with the least possible parliamentary interference. He is a person of very great skill in debate and he uses all kinds of arguments against the notion of allowing the Oireachtas to deal with amendments of these Orders. But, in fact, we pass Bills which affect the lives of ordinary people and we insert amendments in them. We have sometimes inserted amendments which were very poorly drafted and had very evil results, but the notion that the Oireachtas should not amend a Bill or an Order because it affects somebody's business is completely out of date. We have done it over and over again.
I understood the Minister to argue that we cannot amend one of these Orders, unless we have all the knowledge the commission has gained by an inquiry. He is not right in that, and, if he is right in that, we should not pass most of the Bills we do pass and a great many of the amendments moved should never have been moved at all. The Minister is as guilty in that respect as, I take it, most of us. He talks about a public inquiry, but there will not necessarily be a public inquiry at all under Section 6. Some of these matters may be dealt with at an inquiry which will not be public at all, as, for example, under Section 6. That is one argument gone by the board.
Another argument he makes is that there will be great demand for action by the country. If there is, how will members of Dáil Éireann react to it? Will they not be all for it? There will be no trouble at all in that regard. If there is a scandal in the country and if everybody says: "Here is a detestable practice which we want to get rid of", where are you going to produce members of the Dáil who are going to prevent the Minister from ending an unreasonable practice about which everybody is in such a state? It just could not happen. Then we have the vested interest argument. Surely a Minister, being a politician—I am not speaking of the present Minister but of all Ministers—is susceptible to vested interests, just as is a Deputy or a Senator. All these arguments about vested interests apply just as much to the Minister or a Minister as they apply to a member of either House.
Senator Yeats, in his innocence, talks about the dates on which Bills are passed and about protracted debate. Every debate on every Bill is not necessarily protracted. I asked the Minister for Agriculture on Thursday if he were coming to the Seanad. I asked: "Are you Grass Meal?" and he said: "No, I am not; but if you do not mind, I am Tulyar," and he added that Tulyar took 17 hours in the Dáil. It may be regarded as absolutely certain that an Order made after a public inquiry which aimed at ending an unjust restrictive practice would not carry this House as far as Tulyar carried the Dáil. The debate would not necessarily be protracted. There is no place in Ireland as sweetly reasonable as Dáil Éireann at certain times, with the possible exception of Seanad Éireann, which is even more reasonable about passing Bills quickly, and, Heaven knows, the present Minister has ample experience of that.
To say that providing that a Bill may be amended means that there will be a protracted debate about the Bill is absolutely foolish. It is contrary to our experience and just is not so. Why not trust to the good sense of the Deputies and Senators who, as Senator O'Brien pointed out, after all are the people entrusted by the Constitution with the final passage of all these Acts which interfere with the people's lives? That is the great argument in favour of this amendment. The Dáil and Seanad should be able to amend. It does not mean at all as represented here, that they will proceed always to protracted debates and finicky arguments. If they are the kind of Orders the Minister says they are they will get an easy passage but the Minister is constantly painting a particular kind of picture for his own purposes.
There may be other Ministers, times and Parties. There may be kinds of Orders different from those which the Minister so glowingly portrays. It is to meet that kind of thing that we are legislating. We are not legislating for the kind of Orders that the present Minister or his possible successor will make this year, next year or the year after. This amendment should be accepted and provision should be made in the Bill for doing what everyone thought the Minister promised to do in the other House—to subject these Orders to the ordinary process of legislation.
Amendment put.
The Committee divided: Tá, 18; Níl, 21.
Tá
- Baxter, Patrick, F.
- Butler, John.
- Cunningham, John F.
- Douglas, James G.
- Hayes, Michael.
- Johnston, Joseph.
- McFadden, Míchéal Óg.
- McGee, James T.
- McGuire, Edward A.
- McHugh, Vincent.
- Meighan, John J.
- O'Brien, George.
- O'Donnell, Frank H.
- O'Higgins, Michael J.
- O'Reilly, Patrick F.
- Ruane, Seán T.
- Summerfield, Frederick M.
- Tunney, James.
Níl
- Clarkin, Andrew S.
- Fitzsimons, Patrick.
- Gorry, Patrick J.
- Hartnett, Noel.
- Hartney, Seán.
- Hayes, Seán.
- Hearne, Michael.
- Honan, Thomas V.
- Kilroy, James.
- Loughman, Frank.
- Lynch, James B.
- Nic Phiarais, Maighréad M.
- Ó Ciosáin, Éamon.
- O Donnabháin, Seán.
- O'Dwyer, Martin.
- Ua Guilidhe, Seán.
- Quirke, William.
- Ruane, Thomas.
- Stanford, William B.
- Teehan, Patrick J.
- Yeats, Michael B.
Tellers:—Tá: Senators O'Higgins and McHugh; Níl: Senators Loughman and Kissane.
Amendment declared lost.
An Leas-Chathaoirleach
Amendments Nos. 14, 15 and 16 are consequential upon amendment No. 11.
I move amendment No. 12:—
In page 4, sub-section (1) to delete paragraph (f).
In moving this amendment I want to say that, on reading Section 9, sub-section (f), it seems to me that the Minister has got every power he could possibly ask for and seems to ask for unwarranted power in the sub-section under which he can make "such other provision in regard to the supply and distribution of goods or the rendering of any such services as he thinks fit". That is an extraordinary power for anyone to ask for in the Bill, and it is a negation of democracy in itself to be asking such power. I, therefore, ask for the deletion of the paragraph.
I think that it is necessary to have some such general clause in the Bill to give power to deal with restrictive practices which we do not now foresee or that may be devised to get over the provisions of the Bill. It would be impracticable to set out in the clause every possible type of restrictive practice and prohibit it, and it is far wiser if we are going to eliminate restrictive practices reported by the commission to be undesirable that we should not tie our hands by deleting from this Bill a provision which gives us power to deal with practices of that kind which may be operated, but which are difficult just to specify in that paragraph and which we might not be able to foresee at the present time.
I can see the Minister's difficulty, but I suggest that he should draft a sectional amendment. While I know he wants to include it, the sub-section does not state that that is the reason and, as it is written, it gives the most extraordinary powers. In fairness to himself, it is not right to give to the Minister such power, and it is a dangerous thing that he should get it under this section. I do not know if there is any precedent and, possibly, some Senators might tell me if any Act gives to the Minister such powers as the Minister has asked for under this Bill. I suggest that he should redraft the section, but I would not give him this power under Section 9.
In the light of the amendment, I take it that paragraph (e) gives the Minister powers within the limits defined in the Bill. I can make the same kind of objection to paragraph (e) because the wording is always that the Minister shall do this or that, but it is in conformity with the procedure in the Bill itself.
It may be assumed that unless there is good reason to the contrary any Order made by the Minister will be based upon a recommendation of the fair trading commission. In the legislation of other countries there are long lists of different types of practices deemed to be prejudicial to the public interest and prohibited; some relate to practices which, so far as I know, are not known in this country at all, but it is necessary to bear in mind that trade rings, if they exist, exist for the profit of members, and if we limit the powers in the Bill to prohibit specific practices then devices will be made to get around the specific provisions of the Bill and to get the same result by some other method. It is necessary to have power to deal with any type of practice, whether we have experienced it or not and whether we can foresee it or not, which the commission hold is a restrictive practice and an undesirable one. That is why a general provision of that kind is included and the alternative would be to set out table after table of every possible practice which we could conceive or which the legislation of other countries has been directed against.
I can see the Minister's dilemma, but I am reading ordinary English—and that is one thing which I can do. This paragraph does not restrict the Minister at all, and for what he says he wants to do it gives him far greater power. The other paragraph mentioned by Senator Summerfield is a specific provision. Really, it is giving the Minister extraordinary powers—the Minister can "make such other provision in regard to the supply and distribution of goods or the rendering of any such services as he thinks fit." Now how are you going to correlate that with undiscovered restrictive trade practices?
Relating to specific-goods. The Order must relate to specific goods upon which the commission has reported. Look at the beginning of the section—"The Minister, having considered a report of the commission may ... in relation to goods to which the report relates", do this or that.
It does not say that.
It does say it. He may do it in relation to the goods to which the report relates and only in relation to that class of goods.
It is only in relation to the goods to which the report relates and within that the Minister has unlimited power. The Minister has referred to a long list of practices and I hope that the time will come when we will have general agreement as to what are regarded as unfair practices. We have not got anywhere near it now, and if this commission recommends that a particular practice is an unfair practice and if the Minister accepts it, that is the end of it and everybody will have to toe the line. That seems to me to be too wide in these considerations.
It must be decided by the commission that it is an unfair practice and then there is a decision by the Minister and then a decision by the Oireachtas on the Minister's decision.
Surely the cure is worse than the disease? The commission report that there is an unfair practice in regard to the distribution of particular goods and the Minister can then take complete control under this paragraph (f) of the distribution of these goods and make "such other provision in regard to the supply and distribution of goods or the rendering of any such services as he thinks fit". Is not that a very wide provision? Supply and distribution and services relating to a class of goods are entirely in the Minister's hands. He can make an Order which nobody can amend.
That is right.
I think the business community would be appalled at the powers that are going to be wielded under this Bill. It is possible to visualise a Minister using these powers in strange ways, and various interpretations can be put on different aspects of it. We have the Ten Commandments and sometimes we interpret them in our own way, but at least they are written down, but in this Bill nothing is written down and, frankly, when you come to this section under the Bill dealing with supply services, there is nothing to give any indication of what is right or wrong in regard to the supply or distribution of goods. Under the section as it stands, when the Order comes to the Oireachtas, the Oireachtas has no power to amend it, and once the Minister drafts an Order under this Bill the Order is made absolute and that ends it. I feel that there will be considerable perturbation about the implications of this legislation once the commercial community comes to realise the powers that are to be taken.
There is a lot of confused thinking about these matters. Would not the same arguments apply to the amendment if the Minister has a parliamentary majority in the Dáil or Seanad? He could have an amendment rejected quite as well as he could have a motion that an Order be nullified rejected. It is exactly the same thing.
It would take some time for public opinion, which the Minister has spoken about, to make itself felt. There should be some powers of amendment by the Houses of the Oireachtas.
The Minister has to explain the Order in both Houses of the Oireachtas.
There will be adequate discussion and ample discussion upon any Order that might be made under this section, and I think that there is unnecessary fear concerning the powers given in this section.
I have as much anxiety as Senator Douglas or Senator Baxter to eliminate unnecessary fears amongst the business community. We have reached now the further stage in this Bill where we are dealing only with restrictive practices which are unquestionably undesirable and unfair to the public.
What do you mean by "unquestionably undesirable and unfair"?
I mean it in the sense that the commission had reported that they were so and the Minister had agreed.
I am sorry I misunderstood you on that but it is only in that sense.
Yes, it is in that sense. We have come to the stage when we are dealing with practices that are unquestionably undesirable and unfair, and the sub-section is designed to give power to eliminate that type of undesirable practice. I have considerable respect for the ingenuity of trade associations and the business community and their ability to get round any section of this Bill which is too tightly framed and that is why it was necessary to have an omnibus paragraph in this section which will permit of regulations for the elimination of such practices which could not be caught up with by more specific paragraphs earlier in the sub-section. The practice will be that the commission will have made its report to the Minister dealing with the undesirable practices in the trade and indicating the form of Order that he should make.
The Minister will make the Order in the form recommended by the commission amending it only when it is justified and knowing that he has only to defend that departure when the matter comes before the Oireachtas. It is to be assumed that the commission will not recommend any restrictions which are not justified by the circumstances prevailing in the trade as they have ascertained them to be, but having found that there are conditions in the trade which are undesirable, it must be possible under the Act to define regulations to eliminate them and that is the sole purpose of that paragraph.
If you find that there is something wrong in regard to a particular trade, surely it would be sufficient to declare that illegal without taking liberty from the people as to their future actions.
I invite the Senator to put into words what he has just stated and to try and make regulations which will prohibit any practice considered to be undesirable.
I think it would be sufficient to declare certain practices illegal and leave it at that. If the trader concerned then went on to some other practice it could, in turn, be declared to be illegal and another Order could be made but they should be left still with the liberty to determine what course they are going to follow in regard to the distribution of goods.
Nobody could be stopped then.
If something was found to be wrong or regarded as a restrictive practice, I would declare it to be so and leave it there. When you are going to tell people how to run their business I think it is hopeless.
I think that this section gives to the Minister much wider powers than he has asked for. The trouble about this section is that it gives extraordinary powers to the Minister and I think it covers more ground than the Minister himself desires. It is because I see certain dangers that I do not think the powers here should be given. They are too wide for anybody and they will have a very serious reaction on the services trade.
I invite the Senator to have another look at the wording of it and see if the reference to unfair trade practices in the paragraph will not meet his point.
Amendment, by leave, withdrawn.
I move amendment No. 13 :—
Before sub-section (2) to insert a new sub-section as follows:—
(2) No Order under this sub-section shall prohibit any person from refusing to supply goods on credit terms or prohibit any manufacturer from ceasing to manufacture any goods.
I put this amendment down mainly for the purpose of discussing a danger I see under paragraph (b) of Section 9. On the Second Stage I drew attention to a difficulty arising with regard to the refusal to supply goods on credit. The Minister, I think, said then—I have not had an opportunity of looking at the Official Reports which are not yet available—that it was almost inconceivable that anyone would propose anything of the kind. I would be inclined to agree with him, but I do not know how he can make an Order under paragraph (b) without doing just that, unless there is some overriding clause which makes it quite clear that if you prohibit the withholding of certain goods it does not mean that a person cannot withhold them if he is not being paid cash.
Most people in trade have heard complaints from time to time that so-and-so is unfairly treated. In quite a number of cases, having heard such a complaint, I have made inquiries and have been told privately that the only reason for that is that the credit report on the person concerned was not satisfactory. I could not give that reason because it was private and confidential but I am satisfied that it was the only reason. If you are going to prohibit the withholding of goods from any specified class of people, it must be made clear that that does not preclude the withholding of goods on the grounds that the supplier may not be paid—unless, of course, the State is prepared to come in and give the necessary guarantees.
Closely allied to that is the question of a manufacturer making and supplying goods. A manufacturer has made a certain number of goods and an Order is made which prohibits the withholding of that class of goods from certain persons. He should be entitled to say: "It does not pay me to make any more of these goods and I will stop making or supplying them." I want to make it clear that the prohibition against his withholding the goods does not tie him to continue manufacturing them even though the law might appear to force him to do it. He could be so bound, probably unintentionally, under paragraph (b).
The simplest way to remedy it would be by something like my amendment which would make it clear that any Order which would prohibit the withholding of certain goods from certain specified persons should not be taken as prohibiting a trader withholding goods on credit terms.
I think that there is no likelihood that the commission would recommend or that the Minister would make an Order depriving a trader of his right to refuse to supply goods on credit. I suggest it would be undesirable to make a provision of that kind in the Bill. If you put in a suggestion preventing an absurdity, the implication is that certain other absurdities might be done. It just could not happen, of course. With regard to the second point raised by Senator Douglas, I should remind him that the Bill does not deal with manufacturers at all, only with suppliers and distributors.
It does not deal with manufacturers. Does that mean to say that the manufacturer can sell to whoever he likes? The Minister makes an Order prohibiting the withholding of goods from a specified class of persons; that will apply to the withholding of supplies by manufacturers.
If he is both manufacturing and trading in the goods.
If the Order prohibits withholding the goods, can he stop manufacturing them?
Yes.
I think he could be and would be held liable to a fine of £50 a day on being charged with withholding goods which he had at one time supplied and was not now supplying. I cannot see how the Minister can make an Order under paragraph (b) which will not automatically prevent the withholding of goods from Mr. A.B. although the only reason for withholding those goods from A.B. was that he was not considered good to pay. I think the Minister should explain how he would make an Order which would enforce the supply of goods, but would allow non-compliance if the grounds for withholding the goods were that the person to be supplied would be a bad debt. I cannot see how the Minister could make an Order like that unless he stated specifically that a trader could refuse to supply on the grounds that the purchaser's credit was bad. Even that would be very difficult, unless it was put in general terms. In trade we all operate on reports of other people's credit which is private and confidential.
Under paragraph (b) the Minister has power to make an Order prohibiting the withholding from any specified class of persons of supplies of goods. He has not the power to make a trader supply A, B or C, or any specified person. Can you conceive a Minister making an Order requiring a person to supply goods to any particular trader?
I am suggesting that there is no way out of it, unless proper provision is made in the Bill.
The normal trade conditions would apply in all such instances. The normal complaint is that a certain manufacturer will supply only to a limited number of wholesalers and refuses to allow additional people come into the trade as wholesalers. It is not unreasonable for a manufacturer to say: "I will give wholesale terms to a person who buys a certain quantity——"
And pays for them.
Of course, and pays for them.
My point is that he might be contravening the Order by saying: "I will give you 400 dozen if you pay cash." If you take for argument's sake that all persons with red hair are regarded as wholesalers it will be sufficient to make an Order making it an offence to refuse to supply any person with red hair. But a trader may want to refuse not because of such conditions at all but because he is not being paid or the person to be supplied has a bad credit report.
He can certainly refuse to supply unless he is paid in advance. That is not the issue involved: it is the right of the person to get the goods, even when paying for them.
If the Minister would put in a section that nothing in the Order could be taken as being broken simply because the condition was one that he would have to pay cash, that would do.
My argument is that it is absurd to say that any Minister would make an Order requiring people to supply goods to people who could not pay for them. If that were put in, he might make other Orders equally absurd, that the people must have red hair or blue eyes.
It is a question of whether he has had a report that the man was a bad mark and could not pay.
He could make it a condition that he pay in advance, provided a person of the class specified is entitled to get the goods, on payment for them.
I respectfully suggest that, if he makes it a condition of supply that there be payment in advance, he would be held to be introducing an unfair practice against certain persons. I am satisfied if that point is clear; and that is the reason I raised it. I feel it may be extremely difficult to make an Order relating to (b) unless it is agreed that you could refuse the supply of goods to so-and-so who is covered by that Order if your reason was that you were not satisfied as to his credit. It is not a simple matter. This Order when operated will have to be carried out by the trader. He will not have any legal experience and cannot go to a solicitor to find out how it worked previously, yet he is subject to a fine of £50 a day for each and every day during which he is held to have improperly refused to supply these goods. It is an extremely serious matter, and the Minister should not consider that it will be held to be a refusal if a person is not willing to pay cash.
Would the Senator make an Order prohibiting a refusal against persons with red hair? One is as absurd as the other. The problem we are dealing with is the refusal of the supplier to give goods to certain people on any terms, even payment in advance. It is not a problem of an individual who has doubts about the creditworthiness of his customer. There are specific cases where traders who were prepared to pay in advance were refused specific goods because they were not members of an association. That is what we are aiming at. I think it is absurd to put in a safeguard against the possibility of a Minister making a ridiculous Order. It is true I could make an Order requiring tobacco manufacturers to supply all people with red hair, but I do not intend to make one and it would be just as absurd as what is suggested.
I am still of the opinion that the Order which prohibits the holding of goods from certain classes of wholesalers, unless it puts specifically in the Order some reference to payment for cash, will in fact force the supplier to supply on credit terms. If the Minister will assure me that in an Order there must be provision to make it clear that they are not bound to sell except for cash, I will be satisfied. The Minister mentioned one class, the class of persons called wholesalers. I think in such a case it would be necessary to add,"who are credit-worthy."
I will give an undertaking that no Order will be made which will require a trader to supply goods in any circumstances in which there is danger he will not be paid.
Is not that a matter of opinion?
The trader's own opinion.
The real trouble is that when you embark on this kind of legislation you get to the position we have this evening. Senator Douglas accepted the Minister's assurance; but another Minister may be working this Act in 12 months' time. The Minister says he would not do anything foolish and his successors would not. Is not the world full of Ministers doing foolish things?
Not as foolish as that.
Yes, indeed. Things have been done in England in the last five or ten years that 25 years ago would have been considered completely impossible—and some very extraordinary things have been done in this country, too. The whole idea is that this commission is infallible.
No, no.
Yes, infallible, that it will not do anything wrong. That infallibility is a claim made for no other person. Then the Minister is "sensible". We have an infallible commission and a sensible Minister— but the Dáil and Seanad cannot be trusted. I wonder whether this is practicable at all or not.
The Minister, with a great flourish, said in the beginning that paragraph (b) was not a paragraph to compel a wholesaler to supply A, B., a merchant, that it is a paragraph to make him supply a class of persons; but if I am one of the class it is surely a provision making him supply me.
No, no; it means he cannot withhold a supply from you.
What is the difference between preventing him from withholding a supply from me and making him supply me?
It means you can get it if you pay for it.
I am not very highly skilled in business, but I understand that business depends to a very great extent on goodwill between wholesaler and customer.
We want to put it on that basis.
You cannot do it by legislation, I am afraid. You are trying to do something which I doubt very much you can do. Can you compel a wholesaler to take me on as belonging to a particular class and treat me fairly? I very much doubt it, from what I have been told. There may be cases where particular people are unfairly excluded. I admit that, but in order to include them the Minister provides this particular section which involves taking the commission and the Minister in good faith forever. The Minister's statement of what he is going to do is, as Senator Douglas knows and as we all know, valid only for himself and has no validity otherwise. You do not know what kind of people are going to work this Bill and that is the case about all these Acts passed over a long period. We have too much faith in legislation and very little in legislators. We have too much faith in Orders we can make, which will make the processes of trade— which depend on mutual respect and mutual confidence—run in a particular channel. I doubt very much, although I am not a businessman, whether these Orders can be efficacious at all and I want to register that doubt.
I cannot understand at all what is at the back of this amendment or whether the mover of it and those who spoke in favour of it want the commission to go into the private transactions between business people for the purpose of ascertaining whether a person is credit-worthy or not.
That is what the commission will do, what it must do.
They will examine this transaction in so far as it affects the public weal, but any arrangement for credit or payment by cash between one person and another should not be the concern of the commission.
It is bound to be.
Ask the Minister.
It does not matter whether the goods are given for payment on cash or credit. The latter is a perfectly normal transaction. It is all the same. The commission should have the same power to examine the position in both cases. I cannot see the sense of this amendment.
I would ask the Minister to tell us what view he would take of the manufacturer or wholesaler who would say to one class: "You can have goods for payment in cash forthwith", and to another class: "You can have goods for payment in one month, less 5 per cent. discount." Would the Minister think that in such a case, where there was discrimination between customers, he should act?
Yes, certainly; the commission can act.
The Minister would?
The commission can act to eliminate discrimination between classes in that way. There was a case mentioned in the Dáil, where a manufacturer of baths refused to supply a trader in Dublin because his name was not on the wholesalers' list. That is the type of thing which, if it exists, we are aiming to eliminate. I can, therefore, make an Order relating to any specific class of persons and I can require that on stated terms they must get a supply. But Senator Douglas says you must not supply one class of person—those who cannot pay. You can put that in the Bill if you like, but it is absurd to put that in. You could also put in that the Order must not require the wholesaler to supply persons with red hair or with two left feet.
My point was that, in specifying a specified class, you could not help including some who were good pays and some who were bad pays. I want to know how you distinguish and give freedom in the matter.
We are not attempting to distinguish between individuals. We are leaving traders full rights to determine as between individuals those who are entitled to credit and those who are not. What a trader cannot do is to say: "I will not supply anybody who is not on this list supplied to me by a trade association, or who does not conform to certain conditions, irrespective of whether he is credit-worthy or not."
The list might possibly be a list of those who were credit-worthy and those who were not.
I assume, despite this Bill or possibly because of it, there are certain fundamental rights which, whether a person be a manufacturer or a distributor, under the Constitution cannot be affected. Surely nobody is going to argue that any law passed, while we call ourselves a democracy, can compel any distributor of goods to give anybody of whatever class these goods until he is paid for them. No matter what commission is set up, if I were brought before any court for having refused to give goods to somebody who, in my opinion, should not get them without cash, I would think that I had a good case to go to the highest court in the land.
It is not a question of cash alone. I am rather upset because of what the Minister has said. He said, as an instance, that a certain firm of bath manufacturers refused to supply a man with a bath because he was not on the wholesale list. Is the Minister going to argue that, if a man was not on the wholesale list or not being treated as a wholesaler, this Bill will make him a wholesaler or put him on the list?
If he conforms with the conditions.
You do not propose to take away from the manufacturer his right to decide whom he will serve?
A manufacturer might say: "You must have a warehouse, a place where you can display my goods; you must carry a minimum stock; and you must employ a plumber capable of fitting a bath." These are reasonable conditions, provided that anybody who conforms with them can get supply. But the type of practice we are going to eliminate is the practice which says: "Even though you conform to all these conditions—have a warehouse, carry a minimum stock and can pay for goods in cash—I will not supply you because you are not in an approved association."
The Minister said that this does not apply to manufacturers as manufacturers, but only as distributors of products. Can the Minister tell me of any article or series of articles which is manufactured by a manufacturer and not distributed by him to either one person or half a dozen persons?
It is a matter of the distribution of goods and not their manufacture.
My point is that it could affect every manufacturer in the country. He manufactures, but that is only part of the job he does—it possibly is the most essential part—but he must distribute these goods, either to one distributor, wholesaler, to a series of wholesalers—all perfectly legitimate—or direct to the retail trade. Every manufacturer is, of necessity, a distributor of his goods.
And, as such, will be more affected than any other class. I am not pressing the amendment, but I still think it was important that the point should be raised. I still think that if the Minister finds a manufacturer saying that certain people must pay cash and that others can have credit, he will have complaints. It is the sort of thing I have had complaints about.
I was never worried about complaints of that kind, but about complaints to the effect that a man walked up to another man's office and put down his £1,000 in cash in order to get supply and still could not get it.
I am withdrawing the amendment, but let me urge on the Minister that, because he is told that somebody put £1,000 down and was refused goods, he should not believe it too easily. It is darned hard to get £1,000 put down, and there are darned few people who would refuse the goods.
Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10.
I move amendment No. 17:—
In line 34, to delete "restrictive" and substitute "unfair".
This is not of very much importance. I put it down because I thought that this is what possibly was intended, because it is clearly the general practices that it is intended should be watched. It seems to me that the purpose of the Bill and the general wording of it is meant to cover unfair practices.
I think the section is better as it is. The aim is that a general eye should be kept on all restrictive practices and to report, if they think there is some reason they should report, on their operation.
Many of the unfair practices I am against are not restrictive and, therefore, will not be covered by the general wording. I think that is a mistake. All unfair practices, whether restrictive or not, should be watched.
It is unfair restrictive practices we have in mind.
It does not say that.
I am in favour of this amendment because I can see cases where the word "restrictive" would not cover a whole lot of things which I should like to see covered, whereas the word "unfair" would enable the Minister to watch them.
The aim is to deal with restrictive practices. There are other practices which are unfair, but not restrictive in the sense in which we use the term here. While the Bill is limited to restrictive practices, the aim is to have the commission keep a general eye on all restrictive practices, whether unfair or not, on the general assumption that practices which may be restrictive, but justified in the circumstances of the trade, may tend in time to become unfair and should always be kept under review.
The Minister would not agree to put it the other way— unfair practices which would tend in time to become restrictive?
I feel that that would be too wide a term. It would cover the subject of advertising, which was mentioned here.
There are trading rules to cover advertising.
Except that we are not dealing with them in this Bill.
With great respect, it seems to me that fair competitive advertising could easily be something which a trade association would include in its rules, and perfectly properly do so.
Amendment, by leave, withdrawn.
Sections 10, 11 and 12 agreed to.
SECTION 13.
I move amendment No. 18:—
In sub-section (1), line 61, after "offence" to add "It shall be a good defence for any director or member of a committee of management to prove that he was absent from the meeting at which the consent or approval was given and had no knowledge of the offence."
There was a somewhat surprising debate on this section in the Dáil. The Dáil seemed mainly to debate the meaning of a particular word and the Minister put in "default" at the last minute, with the vague idea that it was a fairer and more satisfactory word. I am by no means convinced that it is. It was not intended that a director of a company should be held liable, because, through illness or unavoidable absence, he failed to attend the previous directors' meeting at which the matter was discussed, and the word "default" was put in. I forget what the original word was.
Neglect.
When I turned up the Oxford Dictionary, I found that "default" means a failure to observe a legal obligation, such as failing to turn up on the right day at the court.
If, therefore, they fail to turn up on the right day at the directors' meeting that could be held by the court to be specially covered, otherwise default. I could not think of any word less objectionable. I am convinced that something ought to be done, and the best way would be to provide that: "It shall be a good defence for any director or member of a committee of management to prove that he was absent from the meeting at which the consent or approval was given and had no knowledge of the offence." If he could prove that it should be a good defence. I think that would be better than changing the word. I do not think that the word "default" is any improvement on the word "neglect." I think it is worse from the point of view of possible injustice.
I agree with the view of Senator Douglas on this matter. I think it is quite clear to the ordinary layman at any rate that if a person is absent from a meeting and has no part whatever in the proceedings of the body corporate or directors as a body—I am not presuming to talk for a court of law—that would be an act of default. Consequently, it would come in under the words of Section 13 "any default." I feel quite sure that it was not intended by the Minister that the section as amended in the Dáil should bring about that result. I would urge upon the Minister to consider either accepting the amendment of Senator Douglas or some similar machinery.
I do not think it is necessary at all.
I support the amendment of Senator Douglas because of the very heavy penalties provided for in this Bill. We are passing a Bill which will become the permanent law of the land. Since the penalties are so drastic there should be some way out for the director or the directors. Some provision should be made by which they would not be held responsible for the act which is the basis of the criminal act.
The section provides that "Where an offence under this Act is committed by a body corporate or where it is proved to have been so committed with the consent or approval of, or to have been facilitated by any default on the part of any person being, in the case of a body corporate, a director thereof...."
"Facilitated by any default" is the part which worries me.
That has to be proved by the prosecution. The prosecution has to prove that the commission of the offence was facilitated by the default of any person. The amendment is unnecessary because if a person was not present at the meeting at which the decision was given, then he could not be proved to have agreed to it.
I see the Minister's objection to that. I think there is something to be said for that particular line of objection to the amendment but would it not be possible to frame an amendment which would prevent the difficulty here? When the Minister read out the section he pointed out that it must be proved that some default of the director facilitated the decision in respect of which proceedings are being taken. It would hardly require arguing before any court to state that because a person did not attend the meeting, even if he was ill, his absence facilitated the particular decision taken. I think that would speak for itself and it would hardly require proof. If he were there he might have voted the other way or convinced his co-directors that they were on the wrong road. I suggest that mere absence, even perfectly bona fide absence, is default within the meaning of the section as it stands.
We ought to try and be realistic as regards this matter. I do not think a deliberate decision will ever be taken—if it is it will be extremely rare—on the part of any board of directors to deliberately break the law and ignore an Order. If they did that they should be dealt with very harshly, but that will not happen. What will happen is that there will be doubts as to the meaning of an Order. Directors will not always know all the details as regards who the customers are. It would be bad practice for directors always to have those details. I want to make clear that the wording of this section needs some attention. The section states "proved to have been so committed with the consent or approval of". That is clear, but it can also be proved that the offence was facilitated by default on the part of a person. It is not necessary for that person to have known anything about what happened.
I think that is wrong. I think the wording, as it stands, is wrong, and I cannot see that the section, as it stands, can be interpreted otherwise. I speak with a fair amount of experience, and I do not think I ever missed a directors' meeting in regard to the company with which I am connected. I still think that a person could be caught under that section unfairly. Surely it should be possible to word that section better? We have until Easter to do so, and the Minister might see whether it is not possible to meet us with regard to this. My form of amendment was put down for discussion, but I am more concerned with the principles involved.
The Senator has given a perfect illustration of the type of case where I think it should be held an offence was committed. A company is engaged in an objectionable restrictive practice. An Act is passed prohibiting that practice, and the chairman of the company fails through default to issue new instructions to his staff or allows the company to continue the practice which is declared illegal by his default in not summoning a board meeting. In that particular case prosecution should follow.
That is assuming that an unfair practice is going to be clear and obvious. It will not always be anything of the kind.
This will only arise when an Order has been made and confirmed by law.
The interpretation and exact meaning of Orders in the absence of practice or experience may be extremely difficult. I am concerned that the phrase put in to catch one individual director can only catch a person who is doing something deliberately and wilfully.
Perhaps the Minister would look into the matter?
I have already amended this section to meet the argument that the word "default" was a more positive term and that it implied more conscious and deliberate evasion of responsibility than the word "neglect" did. I think you cannot get away from the situation where you must have some means of getting at the secretary of a trade association or the director of a company who by just not doing something facilitates the commission of offence.
Would that not be culpable default?
You would have to prove the state of mind which is a different thing.
I move to report progress.
Progress reported; Committee Stage to be resumed to-morrow.
The Seanad adjourned at 10 p.m. until 3 p.m. on Thursday, 19th March, 1953.