Seanad Éireann debate -
Wednesday, 29 Apr 1953

Vol. 42 No. 1

Restrictive Trade Practices Bill, 1952—Fourth and Fifth Stages.

Government amendment No. 1:—

In page 3, Section 7, sub-section (1), lines 5 and 6, to delete "(by one or more of their members delegated by them for the purpose)" and before sub-section (2) to insert the following:—

(2) Subject to sub-sections (3) and (4), an inquiry may be held by one or more of the members of the commission delegated by the commission for the purpose.

(3) An inquiry shall not, without the consent of the Minister, be held by a temporary member acting alone.

(4) Not more than one temporary member may act for the purpose of a particular inquiry.

Minister for Industry and Commerce (Mr. Lemass)

I had this amendment prepared to meet a point which was made during the Committee discussion by Senator Douglas. He moved at that time to provide that where the commission holds an inquiry by one of its members it should not be a temporary member. This amendment is as far as I am prepared to go to meet that view. The House will appreciate that there are two types of temporary members contemplated in the Bill— one, a member appointed temporarily to replace a permanent member who is ill or not available—and another who may be appointed for the purpose of a special inquiry because of some particular knowledge about the subject matter of the inquiry.

In the case of a member appointed to replace temporarily a permanent member, I think he should have all the powers of the permanent member. In the case of a temporary member appointed because of special knowledge for the purpose of a particular inquiry, he should, in my view, act only for the purpose of that inquiry. The provision which I now propose to insert in the Bill provides that the committee may not hold an inquiry through the medium of one temporary member, without the Minister's consent. In my view, the Minister's consent should not be given to the holding of an inquiry by a temporary member of the second class acting alone, that is, by a person appointed to assist the commission because of special knowledge. That is the purpose of the amendment, which goes a considerable distance to meet the point made on the Committee Stage by Senator Douglas.

Mr. Douglas

While I appreciate the reasons the Minister has given for placing the amendment on the Order Paper, I am still of the opinion that in general an inquiry by one person is undesirable. Even though the temporary member may have been appointed in place of a permanent one, if in fact he has been there only for a week or two, I do not think he alone should hold an inquiry. It is undesirable that that should be possible. However, the amendment is much better than the Bill because it means that if this is to take place the Minister for the time being is entirely responsible for it and that, in my opinion, is a very big improvement. For that reason I am glad the amendment has been put down and I am prepared to support it.

Amendment agreed to.

Mr. Douglas

I move amendment No. 2:—

In page 3, Section 7, to delete sub-section (5), lines 21 to 23.

I put this amendment down immediately after the Committee Stage partly because I thought the Minister would deal with it and partly because it did not seem to me that this particular sub-section was properly dealt with or sufficiently debated on the Committee Stage. It was, I think, Senator Hearne who drew attention to the difficulty of understanding exactly what it meant and I think he suggested that it implied that any citizen of the State could ask to have an inquiry held and, if he did so, in some form or other the commission would be obliged to give reasons if they did not act.

It seems to me that this sub-section which, I think, was introduced in the Dáil, implies a great deal more. I think it would be much better out, because quite easily it could create a ridiculous position if it were generally known. You will find plenty of individuals who would have no hesitancy at all in asking for an inquiry for their own particular interest which might not be in the general interest at all. This is especially so if an individual can get an inquiry at the expense of the State and free of cost to himself. If it cost him some money to have an inqury, I would not be at all alarmed at this sub-section.

I wonder is it really wise to keep it there at all? Does it really achieve anything? Is it not open to the objection that the commission could be put into an embarrassing position by having to give reasons? Either the reasons would seem unreal or absurd or formal or, if it had to give detailed reasons, the reasons it gave would be held by the general public to be the reasons of the Government of the day, though, in fact, they might be nothing of the kind. The more I think of this the more I am opposed to it, but I am not going to press the amendment against the Minister. It seems to me that it should be discussed at greater length and that was my object in putting this down.

Mr. Lemass

The Senator is correct in saying that this did not appear in the Bill as originally drafted and that it was inserted as an amendment in the Dáil. I gather that there is an objection by Senator Douglas to the sub-section because of the implication that any person might request the commission to hold an inquiry. The Bill provides that the commission may hold an inquiry on its own initiative and shall do so if requested by the Minister. If any person feels that there is something happening in a particular trade that should be investigated, he could write a letter to the commission or to the Minister. If he writes to the Minister, then the Minister will be obliged to consider if there are reasons making it desirable to direct the commission to hold an inquiry or not. If he decided not to, he would be under some obligation to give an explanation for his decision to the person who made the proposal. If he did not do so, presumably that person would be in a position to arrange to have a question asked in the Dáil which would have the same effect.

It seems to me, therefore, that we might as well face up to the fact that a person who considers he has a case for inquiry can ask for it by one means or another. If the commission is not satisfied by the facts produced, if there is no prima facie evidence that something is wrong into which the commission should inquire, presumably the commission will not move unless the request is repeated by a number of other people, a sufficient number to show that public anxiety exists that might be allayed by an inquiry. If the request is received by the commission or by the Minister for the holding of an inquiry, it is not unreasonable to require that the person making the request should be told whether it is or is not being acted upon.

I have no very strong feelings about the amendment, but some people in the Dáil thought it desirable as there might possibly be requests by various organisations interesting themselves in matters with which the commission would be dealing and wanted to ensure that these organisations would get the courtesy of an explanation if any proposal they made of this kind was not adopted. In my opinion, it is just as well to leave it there. I think it will not make any difference. If the circumstances are such that the commission is not prepared to undertake the preliminary investigation which will enable it to give reasons for not holding a formal inquiry, then the reply in most cases will be that a decision has not been taken and would not be taken until there is time available for the holding of that preliminary inquiry. Whether it is in the Statute or not, it is to be expected that people who write to the commission or the Minister would want a reply.

Professor Hayes

That, surely is an argument for leaving it out. If it is assumed that a person will get a reply from the Minister or a statutory commission, this particular provision inserted in the Statute does not add in any way to the rights of the individual because everybody knows that there is nothing to interpret the word "reason" here. As the Minister says, the commission can write to say: "We have not had any time to go into this thing yet," and that is the answer.

The fact that the Minister says it makes no difference is really a reason for leaving it out. It seems to me every section and sub-section and every part of a Bill should be in for some reason, should be directed towards some purpose, and if you can say about a sub-section that it does not matter whether it is in or out, then it should be out, not in. It is obvious to anybody that if the commission gets a comparatively small number of inquiries it may give lucid reasons for not holding inquiries. If it gets a very considerable number, some intelligent secretary would devise a formula of reply which everybody would get— Kelly and Burke and Shea; no matter who they are, they would all get the same reply if this sub-section were not there at all. As the Minister says, the sub-section has no purpose, and if it has not, it ought not to be there.

Mr. Lemass

Nevertheless, there is this case to be made for it, that it represents an effort to meet arguments advanced in the Dáil in favour of giving certain organised groups outside the Oireachtas, or a certain number of members of the Dáil, the right to insist upon an inquiry. The idea that the commission might at some stage be used to prevent inquiries was being ventilated—that whatever the immediate intention might be there might at some stage be a Government in power that would instruct the commission not to hold inquiries, in which case it was argued that it would be much better if the commission was not there. To remedy that danger there were a number of proposals and one of them was that if there was a request from individuals or a group of individuals that an inquiry should be held, the giving of reasons for not holding it should be a statutory obligation on the commission. For that reason I think it is better to leave it there rather than create now the suspicion that we are trying to get away from the situation in which it was intended the commission will be active in the investigation of restrictive practices.

Professor Hayes

I do not want to butt in again, but the Minister knows as well as I do that if the Government is strong enough to throttle the commission, it can deal with any request without much bother.

Mr. Douglas

I am not pressing it, but I am not convinced. The Minister indeed was unusually unconvincing. Personally, if I were the Minister I should hate to have it there. I think at the same time that he has rather misled us or perhaps misled himself by mixing up a request to the Minister and a request to the commission. I would have no objection, although it is unnecessary, to put it in any Statute that the Minister should reply to a request. His staff is big enough. However, this is quite different; this is a subordinate commission created under this Bill with one or two rather extraordinary functions. One of them is that it has to reply to any member of the public and has to explain why it has not done what an individual asks. However, I am not going to press this amendment if the Minister wants the sub-section.

Mr. O'Donnell

May I ask the Minister if I can infer from this that the person who demands an inquiry has got to get the reasons why the inquiry is not being held?

Mr. Lemass

The reasons must be stated.

Amendment, by leave, withdrawn.

Mr. Douglas

I move amendment No. 3:—

In page 3, Section 8, sub-section (1), paragraph (b), lines 33 and 34, to delete "or involve resale price maintenance".

It seems to me that this section as it stands implies that resale price maintenance of itself is an unfair practice. It is something about which the commission must report and it is classed in the same category as practices which restrict competition or restrain trade. I think this may do more harm than the Minister realises. Until it is established that resale price maintenance of itself is not necessarily an unfair or undesirable thing this section will have the inevitable effect of discouraging enterprise on the part of manufacturers who intend to bring out certain types of branded goods. They will look with uneasiness to the number of years it will take to have a sufficient number of reports from the commission to establish its attitude with regard to price maintenance.

On the Second Stage I think I made it clear that resale price maintenance, when it is carried out by a monopoly or operated by a ring, is as a general rule undesirable, and if it is to be allowed, it should be controlled by some form of price control. If these words were taken out of this section, and if a commission found resale price maintenance which was in effect unfair or was operated by a ring, it would automatically have to report because it would clearly be required to do so under the other sub-sections.

I think I also made it equally clear on the Second Reading—I do not want to make a long speech now—that in my opinion resale price maintenance, where an independent manufacturer fixes a price at which his goods may be sold to the public can be a desirable and beneficial thing and not in any way detrimental to the public interest. The fixing of the retail price of a branded article by one manufacturer does not stop competition unless there is a ring which, as I have said, I am totally opposed to.

Any other manufacturer can bring out another brand and sell a better or cheaper article. It does seem to me that we should definitely encourage a larger number of branded articles, produced and advertised on the part of manufacturers, than we have at the moment. Where a manufacturer fixes a brand with a name, he stands over it. He cannot afford to sell an article that will not give fair value. If he does, then all his advertising and the money he has spent will be gone for nothing.

Irish manufacturers are, to some extent, handicapped by the fact that there are certain names at the moment that are so well known that if they appear on articles in a shop window people will go in and buy them at once. They have been established by British manufacturers since—I nearly said since I was a child—but for many years. Manufacturers in this country ought to be encouraged to replace these names by the establishment of names of Irish goods which, in the course of time, people would accept with equal confidence.

I am not speaking solely from my own view; it is the common view that somewhere, as a result of this Bill, there is going to be an attack on retail price maintenance as such. I do not believe that will happen. I think there may be cases where, because it is proved to be unfair, it may come under some Order. I do not believe that any commission which is fair, or any Minister who looks into the matter carefully, will make any Order which of itself will prevent a manufacturer fixing prices at which goods may be sold. I have been asked by people would it be safe to bring out a new line at the present time and I have had to say no. I had to tell them to wait and see how it will operate. Perhaps fair trading rules in certain industries will deal with this matter, but whether they do or not, every report under this Bill must say whether or not there is resale price maintenance. I think that is undesirable. That report should only be made if, in effect, the practice comes under the other description of unfair practices which should be reported on.

For that reason I urge the Minister to take those words out. It does not affect the commission in any way. Any form of unfair price maintenance will be reported.

Mr. Summerfield

I rise to support the amendment. I think the words "resale price maintenance" have been given a sinister significance that they do not deserve. If you look all over the world you will find that many of the branded articles which are giving the community the utmost value are doing so because the manufacturer has guarded and protected them by fixing certain prices. A brand cannot be established overnight. It takes a lot of speculative enterprise and a lot of capital to identify a brand with an article and, as has been said, it is no use advertising a branded article which is not going to stand up when gauged by the two measures of value and cost. It is unfortunate that in the discussion that raged in the Seanad and in the other House on the terms of this Bill these words have been taken to mean that by the maintenance of a resale price the community is being fleeced.

I want to say with all the seriousness and sense of responsibility of the interests I represent that, in the vast majority of cases, price maintained articles can be proved to be giving better value and better quality than articles for which there is no price maintenance. It must be remembered that goodwill is something that is built up only after you have obtained the confidence of the public for the particular article, and the brand is essential to that.

Again, price maintenance is not something peculiar to this country. Price maintenance of standardised quality goods is a feature of world commerce, and I should be long sorry to see this little country, with its fairly recent expansion of industrial activity, encouraging something which would stifle what we so badly need, speculative enterprise, and people are not going to be encouraged to speculate in industries, unless they can feel reasonably sure that they will get a fair crack of the whip, and they will have to get that in some cases by being permitted to establish, first, a quality for their goods and, then, a price. For that reason, I support this amendment and suggest that the Minister ought to consider it.

Mr. O'Donnell

I also support this amendment. I think it rather unfortunate that the word "involves" is used in this paragraph, because we usually associate that word with something murderous or criminal and the use of the word naturally prejudices our mind in the matter. I am quite sure that the Minister is fully aware that the Irish industrialist and manufacturer is at the moment suffering a severe disability because he cannot go out on the production of an article on a price maintenance basis, due to the tremendous advertising of goods produced elsewhere and, probably in some cases, in this country under foreign trade names. This covers a much wider sphere than the word itself suggests.

This matter of price maintenance is of first importance because if any of our industries wish to build up a new commodity, they have to put a branded article on the market and stand over both it and their price for it. It seems to me that this is redundancy of expression and I cannot see why a full stop was not put after the word "conditions", because the section is sufficiently comprehensive without this addition which is rather ambiguous and seems to suggest that there is something wrong in resale price maintenance. The sub-section could be allowed to read as it is up to the word "trade"—"state whether and, if so, how these conditions prevent or restrict competition or restrain trade." That in itself would be sufficient and would bring the matter within the terms of the commission for discussion.

I ask the Minister to consider this amendment because, whether he likes it or not, the addition of these words to the sub-section has had the sort of repercussion of which Senator Douglas has told us. There are manufacturers who are of the opinion—perhaps wrongly—that this matter of resale price maintenance prohibits them from exploiting new lines. This may be an entirely wrong point of view, but these doubts have existed, and so long as the words do that kind of thing, while not improving the Bill, I feel that the Minister should agree to the suggested alteration.

Mr. Lemass

Before anybody breaks down in tears over the plight of the manufacturers, let me say a few words. We are told that in no circumstances contrary to the public interest could a manufacturer say to a trader: "You will sell my goods at the price I fix. If you sell them at less, I will see that you are boycotted by the members of my trade association." Senator Summerfield says that the term "resale price maintenance" has a sinister significance. Of course it has, and it has that sinister significance because of the abuse of what would otherwise be a normal trade arrangement by unscrupulous manufacturers or traders designed to exploit the position they have in our market, frequently a protected position, and to deny the right of traders to sell at a lower margin of profit for fear it might interfere with the manufacturer's position or the manufacturer's profit.

In any case, this amendment is all nonsense, because it implies a misreading of the section. Senator Douglas apparently dislikes the implication of the insertion of the words "or involved resale price maintenance" in paragraph (b) of the sub-section. He said he had not got the Bill before him, but, if he had it before him, and had read the whole sub-section, he would see that there is no implication attached to the insertion. This sub-section deals with the form the report of the commission is to take and requires the commission, in its report, to describe the conditions which obtain in regard to the supply of any goods and, secondly, to state the facts whether these conditions prevent or restrict competition, or restrain trade, or involve resale price maintenance and requires them to go on and state whether, in the opinion of the commission, any such interference with competition or trade is unfair, or operates against the public interest and to give their reasons for that opinion.

There is no implication by the insertion of these words in the paragraph that in all circumstances resale price maintenance arrangements are harmful to the public interest. They are required to report on whether they exist and then to express their views as to whether or not they are harmful to the public interest. There is no greater implication attaching to the insertion of these words than there is to any of the other words in the section.

It is because we recognise that there may be circumstances in which arrangements which restrict competition or restrain trade or involve resale price maintenance may not be harmful to the public interest that the sub-section is worded in that form; but the commission are asked to report to the Legislature upon the facts and to supplement the facts with their opinion whether or not these conditions, as they find them to exist, are harmful to the public interest.

On the basis of that report of the commission, the facts as stated by them and their opinion on the facts they give, a decision whether to make a law in the matter will be taken; but it is nonsense to suggest that there are not resale price maintenance arrangements which are decidedly harmful to the public interest. Of course there are, and every member of the public knows it to be so. We have seen cases reported in the papers of organised boycotts of traders who would not conform to resale price maintenance arrangements. We also know that there are other arrangements of that kind which may not be harmful, but, as I said before, the onus of proof is on those who practise them. It is for them to show that the arrangements they have introduced which restrain trade or limit competition are not harmful to the public interest. If they cannot show that, the arrangements should be terminated. That is my point of view on the matter.

Mr. O'Donnell

Surely the Minister will agree that there are two sides to the question. The mere statement that unscrupulous manufacturers exist does not get away from the fact that there are unscrupulous retailers also. If an Irish manufacturer goes to the trouble of producing an article as good as he can produce at a fixed price and if he advertises that article and puts it on the market and then finds that some retail store has cut his fixed price, there is no benefit to him in the Bill. He is not protected by it because any retailer can take a fixed price article and cut the price, on the argument that the price is too high. Nobody here is arguing for the unscrupulous manufacturer—I doubt if there are as many as the Minister thinks—but the Minister has other means of discovering them. He has his prices commission and other means of investigation. If people were extorting unfair prices, he had plenty ways of rapping them on the knuckles.

There is no necessity for this addition of the words: "or involve resale price maintenance" because the other portions of the section cover it, but I should like to stress that, so far as I am concerned and, I am quite certain, so far as the Federation of Irish Manufacturers for whom Senator Summerfield and I speak here are concerned, we are entirely with him if he can prove—not merely state—that such unscrupulous practices are taking place. It must be remembered, however, that while you try to choke the practice in itself because it is bad, you may do a lot of harm to young industries which are trying to establish new brands under resale price maintenance conditions.

Mr. Lemass

You cannot do harm by having the facts found out and reported to the Oireachtas.

Mr. O'Donnell

Is there any necessity for the addition of these words?

Mr. Lemass

The only effect of putting the words in the sub-section is to require that the facts about resale price maintenance will be reported, without any question as to whether the arrangements are good or bad. That comes later.

Mr. Colgan

Does Senator O'Donnell claim that any manufacturer has the right to say to a retailer: "You must not sell such an article at less than such a price"? That seems to be the argument—that the manufacturer is to fix the price. If that were allowed, the purpose of the Bill would be completely defeated. What the Minister is trying to do is to ensure that there will be such competition of benefit to the public amongst retailers that the Bill will be worthwhile, but if manufacturers are to be in a position to fix a price and to say to anybody: "You cannot sell that article at less than a certain price, or, if you do, you will get into serious trouble with other people as well as with me, because you will not be supplied with this article", the whole purpose of the Bill will be defeated. If the manufacturer gets a fair price, he ought to have no further concern.

Mr. P.F. O'Reilly

I also support the amendment. I thought the case made by the proposer and by those who spoke in favour of it was quite reasonable.

I would like the Minister to be a little bit more particular in regard to what he has stated as to the effect of resale price maintenance. I know very little about it. I am quite certain there is a great deal in what the Minister says. I am quite certain also that in a number of cases resale price maintenance works unfairly against the public. I know some cases where the public benefit because of price maintenance arrangements. There is a great deal in what the Minister has told us. I think we should hear a little bit more about it.

I would like to remind the Minister that there will be nothing to prevent the commission from including in the report anything else which they may wish, outside what they are obliged to include. This section provides that the commission shall include certain matters in the report. I think, unless there is a great deal in what the Minister has told us as to resale price maintenance and its adverse effect on the people, that it should not be specifically referred to in the section as it is now and that the commission, itself, although not obliged to make any reference to it in the report, may, if they wish to do so, make reference to the fact that there is resale price maintenance which operates unfairly. I think the proposers have made a reasonable case for the amendment and that the Minister should accept it.

I am quite satisfied that great good is done to trade generally by the insistence upon fair resale price maintenance arrangements. I know that injustice could be done to the public if a manufacturer were to say: "You will charge no less than £x." The price might be excessive. I quite appreciate that in that case harm might be done to the public, but really I am not convinced that resale price maintenance of itself is wrong. I think, on the contrary, that it is a natural and a fair trade protection.

Mr. Burke

I see one difficulty in dealing with this section and I should like if the Minister could throw some light upon it. It sometimes happens that manufacturers issue a catalogue giving an indication of the price to be charged. The retailers tell the manufacturers that if anyone sells under that price and they supply them that the whole group of retailers would then refuse to deal with the manufacturer. The manufacturer is then forced into the position of having to maintain a resale price level whether he wishes to do so or not. The retailers, as a group, will withdraw all their business from that factory and transfer it to another factory selling a competitive line of goods.

I know that has been done on several occasions. Nothing can be done by bringing the manufacturer before this commission in this case and I am afraid that if the body of retailers are brought before the commission the manufacturer, whoever he may be, will probably be subjected to some form of blackmail, either directly or indirectly. That will be one of the things that will have to be faced under this Bill.

Mr. Yeats

I think that those who have spoken in favour of the amendment and in favour of the manufacturers have rather misunderstood the position. I feel that the Bill, as it stands, is, in fact, rather in favour of the position of the manufacturers. It is more satisfactory from their point of view than if this amendment were passed. As the Bill stands, the position is that the commission makes an inquiry, whether it finds that the resale price and maintenance arrangements concerned are or are not advantageous to the public. In either event, it must make a report.

If this amendment were passed, then the commission would be bound only to report on resale price maintenance arrangements if they were considered disadvantageous to the public and not otherwise. From the manufacturers' point of view it would be desirable, in view of the public feeling on this matter, that where resale price maintenance arrangements were of an unsatisfactory nature and not advantageous to the public the commission should be bound to report.

The supporters of this amendment ask that wherever resale price maintenance arrangements are considered satisfactory by the commision information should not be made public. The public would not hear anything about it. I feel that this amendment is entirely misconceived. If, as has been stated, in the great majority of cases resale price maintenance arrangements are entirely satisfactory, the people have nothing to lose.

Mr. O'Callaghan

I am not in favour of this amendment. I approach this matter from the agricultural point of view. Many farmers feel that the price of tractors is too high and that the percentage which the trade gets for selling tractors is entirely too much. That is the opinion of many people. It is my opinion also. The manufacturer fixes a price for tractors which give the retailer 33? per cent. That is the view which is held generally throughout the country and it is considered that that is a very heavy impost on the agricultural industry. People talk about it and say that if half that figure were allowed to the retailer it would be quite enough. The same thing probably applies to all other kinds of farm machinery and I do not think it is justified. I do not think the manufacturer is justified in putting on such a heavy impost as 33? per cent. in regard to tractors. I hope I will be corrected if I am wrong.

Mr. Summerfield

It is not 33? per cent.

Mr. O'Callaghan

If it is not I withdraw the statement, but I hope that Senator Summerfield will tell us what the percentage is. It is generally believed that 33? per cent. is the percentage.

Mr. Lemass

I would like it to be clear that this amendment is not to decide whether resale price maintenance arrangements are harmful to the public or beneficial to the public. This amendment relates to the form of the commission's report and nothing else. As the Bill stands, the commission is asked to report whether in any case they investigate resale price maintenance arrangements operate. The amendment seeks to delete that provision so as to release the commission from the obligation of reporting on that. I think the commission should report on the facts. I think it is in the interests of traders or of combinations of traders who can operate these arrangements and think they can show that they are beneficial to the public either by reducing costs or giving better services, that that fact should be brought out.

There is one further word which I would like to say. The representatives of manufacturers here are rushing in to assume that this Bill is directed against them, but many of these retail price arrangements of which I am aware are operated against the manufacturer. I remember one case quite recently where I persuaded the Government to impose a protective duty on a certain article which increased the price of the article by 6d. An organisation of retailers met and decided that they were going to increase the price of the imported article by 6d. and to make a similar increase apply to the Irish article so that both would be sold at the same price, thereby nullifying the effect of the protection which the Government had decided to give. There are other instances where combinations of retailers have decided to get a margin of profit on the sale of some Irish-made goods which operated to bring the price of those goods to the public to a higher level than manufacturers thought would be justified.

These arrangements are not always designed by manufacturers. Many of them are designed by retailers' organisations or by associations of wholesalers and retailers. There were as many cases brought to my notice where restrictive trade practices were directed against manufacturers as of similar practices directed against the public. All that is being asked here is that the commission should report on the facts. The amendment seeks to put this particular type of restriction in the position that the commission will not have to report on it. I think that is wrong.

Mr. O'Donnell

I think that the paragraph in the section might be allowed to remain up to and including the word "trade." I think that if the paragraph were so amended, the Minister would still have sufficient power. The words "resale price maintenance" have a peculiar significance in the public mind, and what we object to is the inclusion of these words. We object to the way in which they are put in. I think that the Minister has sufficient powers under the section without these words, and that the commission will still be able to report.

Mr. Lemass

The next paragraph of the section asks the commission to report whether these practices "are unfair or operate against the public interest." I think that anything which restricts competition, restrains trade or involves retail price maintenance must be assumed to be bad until the contrary is proved.

Mr. Douglas

The last statement of the Minister expresses exactly the fundamental difference between us. He says that anything that is in the form of resale price maintenance must be assumed to be bad until the contrary is proved. If he is right, then the section of the Bill as it stands is right, but I believe he is completely wrong. The Minister in his very vigorous reply on his first intervention on this particular amendment, argued effectively against agreements for resale price maintenance to which I am just as much opposed as he is. I think that if anybody will go to the trouble of reading the debates on our previous discussions on this Bill he will find that I made that absolutely clear.

I am a member and president of one trade association, but I am not speaking in any sense on their behalf. I did not consult them about anything I said on this Bill. I am in no sense representing or claiming to represent manufacturers. My personal attitude —it has been my attitude as long as I have been a member of this House— is that I am opposed to trade rings. I am opposed to trade associations which attempt to force their members to do things which they do not think right and which they do not think reasonable. I am in favour of trade associations and of trade consultations for the exchange of opinions but I am opposed to trade associations for the purpose of fixing prices, as I said on a previous stage of the Bill whether these would serve wholesalers or retailers or both I have never made any secret of it.

There are a great many practices which want consideration, care and investigation, but I disagree with the Minister in the sense that this commission of two is the best plan you can make to do so. We need not deal with that point now. I put this amendment down not so much because I think it matters a terrible lot whether it is there or not, but because I am convinced that there is a wrong impression abroad in relation to what may happen under the Bill. That wrong impression is not in the public interest. I am afraid that the last statement made by the Minister justifies entirely that wrong impression.

My case is that, for a group of persons who should be competing against one another, to join together either to fix a price or force persons to sell at a particular price, is something which is not in the public interest, unless there is some form of control. Where an individual manufacturer, in order to protect his products and the fair sale of them, acts completely independently in fixing a price and takes the risk involved in fixing it, then he ought to be given freedom to do so. In other words, I am out for free competition and for freedom, particularly on the part of manufacturers to do what they think is right without being coerced by groups or associations or any other body which might use pressure to force them to do things which they think ought not to be done, either in their own interest or in the public interest.

I am against any kind of group coercion whether you call it a ring or a trade association. I am all in favour of trade associations for the purpose for which quite a number of them do exist, namely, to make joint representations to the Government, for the purpose of giving information on quotas and on various other matters about which the Minister is well aware. I am sure he agrees with me that for these purposes trade associations are highly desirable.

I put this amendment down in the hope that I would get from the Minister what I did not get, a clear distinction between a group or a monopoly price maintenance, and the right of the ordinary individual manufacturer to fix the price of a particular article which he hopes to sell, without the risk of a wealthy distributor coming along ready to sell at below cost, thereby putting his article off the market. That is the real problem and the real danger in a small country such as ours. It is a thing against which the manufacturer should be able to protect himself. It does not need rings or associations to do that.

A rather ingenious point was made by Senator Yeats. He thinks that this very uncertainty is desirable—the uncertainty that I am afraid of. I think I can safely say this that it will take six, seven, eight or perhaps a dozen reports from this body before one can get to know what is its general trend. As the Minister rightly pointed out, its reports will deal with individual cases. I disagree with Senator Yeats because I think that where there is uncertainty it is not good for Irish industry.

Senator O'Callaghan raised a point which I confess I am not competent to deal with. I do not know what the percentage of profit is in any business outside my own. Before one could accuse people of profiteering or of making unfair profits, one would need, first of all, a report from a body like the Prices Commission, which had gone into all the circumstances. If I can sell a 1,000,000 products, I would probably be delighted with a ½d. on each, but if I sell only one, 33?rd might be of no use to me. I give the two extremes in order to show that it depends on the circumstances in relation to distribution as to what is fair profit and what is not. It depends on what is expected of the retailer, whether he has to carry stock, whether he has to give window space, and so on. Therefore, I ask Senators not to assume that because someone talks about 10 per cent. it is a low rate of profit—it may be far too high—or because someone talks about 50 per cent. that it is too high —it may be too low in the circumstances. Supposing that I am a retailer selling an unusual type of machine, I imagine I would need to make a profit of at least 50 per cent., as I might sell only one in two years. On the other hand, if I were selling thousands of something every day I might be pleased with a ¼d. or a ½d. Therefore, I urge Senators not to make generalisations which can do harm, when they have no knowledge of the actual distribution circumstances.

Mr. Summerfield

A certain charge has been made——

An Cathaoirleach

I want to remind Senators that this is the Report Stage and I understand that Senator Douglas has now concluded the debate—unless the Minister wishes to reply.

Mr. Summerfield

I suggest that because of the importance of this matter I ought to be given an opportunity of dealing with it.

An Cathaoirleach

Nevertheless, we are on the Report Stage. The Chair has been rather generous towards some Senators but we must get some kind of orderly discussion. If the Minister wishes to reply to Senator Douglas, he may.

Mr. Lemass

I have nothing to add.

Mr. Douglas

With great respect, I think that if the Minister replies I am entitled to conclude the debate. However, I do not want to say any more now and do not want to stop the Minister.

Amendment, by leave, withdrawn.

Mr. Douglas

I move amendment No. 4:—

In page 3, Section 8, sub-section (1), to add new paragraph as follows:—

(e) state whether the commission is unanimous in its conclusions.

This amendment is, I think, desirable. I do not feel as strongly about it as I did about the previous one, though possibly I have more hope that it might be accepted. I would like to draw the attention of the House to the fact that this particular commission, in relation to the Minister, is placed in a position that I do not remember any other commission being placed in. The Minister has to go to the Oireachtas and explain why he will not do what the commission says. I think that that is undesirable but it is in the Bill and I suppose the Minister has agreed to it. Under those circumstances, any Government when it gets the report from the commission, which may represent two members or three, should have some indication as to whether it is a unanimous report or not.

I am assuming from what the Minister has said—but I may be wrong—that on what the Minister thinks are minor matters there may be only one member; and one person has to be unanimous, whatever he does. I am assuming that the whole commission will meet on the more serious matters. A report creates a position in which the Minister must act, or explain why he does not. The Oireachtas, in deciding whether the Minister acts rightly, or whether he does not, might reasonably be told as to whether it is the view of the commission unanimously or whether there is a minority report or disagreement. I think it is desirable and reasonable, but I do not wish to spend time fighting on it.

Mr. Lemass

I would draw to the Senator's notice the fair and logical argument used by Senator Hayes, that we should not put anything into the Bill which need not be there. There is nothing in the Bill which says that the commission must be unanimous or which prevents a dissentient member from submitting his views. If there is a minority report it will be published. There is no obligation on the commission to be unanimous and there is nothing that prohibits the publication of majority and minority reports. Therefore, I would say that the amendment is not necessary.

Mr. Douglas

If the Minister is correct—which, respectfully, I doubt— that if there is a minority report it will be shown or if it is not unanimous it will be shown, then I agree that the amendment is unnecessary; but I would ask him is there anything anywhere in the Bill to say that that is the case.

Mr. Lemass

The Bill allows everything it does not prohibit.

Mr. Douglas

In practice, however, people on a commission act according to usual practice. I suggest that the commission will be composed of two or three in the more important inquiries. One may not agree.

Mr. Lemass

Every report will be a report of the commission, not merely that of some members or the member who holds the public inquiry.

Mr. Douglas

That is the reason why I want to know whether they are unanimous. I agree that it may be only one member of the commission who will hold the inquiry but the report must be based on that. It is particularly important where you have an inquiry by one person. The Minister says that will save time; I am against that point, but it has been accepted and is in the Bill. The commission will probably be three persons. These meet and consider the information given by the one person who has made the inquiry. That means that the other two may divide; one may side with the person who made the inquiry and they will make a majority report, the report of the commission. If there is that disagreement, it is reasonable that we be made aware of it.

Mr. Lemass

You will know.

Mr. Douglas

The Minister says we will know and I am glad to get that on record, but there is nothing in the law to say that is so. I am not prepared to press this, but I want to emphasise to this House the importance that in a commission of this kind the Oireachtas should know whether it is unanimous or not.

Mr. Lemass

The alternative is to assume that some member of the commission is going to sign a report that he does not agree with.

Mr. Douglas

No, no.

Mr. P.F. O'Reilly

If the commission consists of three persons and there is a two to one division, obviously the report, that report of the commission, will be the report of the two members.

Mr. Lemass

No. It will be the report of all three.

Mr. P.F. O'Reilly

This is where I want to get some information from the Minister, so that we may be clear about it. If two take one view and the third takes another, the Bill provides that there would be only one report.

Mr. Lemass

It does not.

Mr. P.F. O'Reilly

The Bill obliges the commission to give only one report and the report will be the report of the two. Therefore, we will—not as suggested by the Minister—have the report of two, which will be called, very properly, the report of the commission.

Mr. Lemass

It will be the report of all members of the commission.

Mr. P.F. O'Reilly

Yet no one will know, except the three members of the commission, perhaps. The commission is obliged to make a report which can only be the report of the commission, while in fact, in such a case as I have mentioned, it will be the report only of two members. It has been suggested by the Minister that we will know all about the dissenting member's view. We cannot compel the commission to disclose what is the view of the other member, as the commission may very properly say: "You have had our report." Therefore, I do not think the Minister is correct in saying we may get the opinion expressed by the other person who is dissenting from the majority view. We shall have only one report, the report of the two. It will be the report of the commission.

Mr. Lemass

I stated here during a discussion on the Committee Stage that there is nothing in the Bill which requires the commission to be unanimous or prevents an individual member from submitting a minority view.

Mr. P.F. O'Reilly

Again may I say that while there is nothing to prevent him from taking that view there is nothing to oblige him to submit it and that, I think, is the point Senator Douglas wishes to have cleared up.

Mr. Colgan

The majority makes the report and that should be sufficient. If the principle of this amendment were applied to the Labour Court, where would we be? Nobody knows what the Labour Court does—whether all three are unanimous or only two. You would have nothing but chaos if you published the discussions and decisions of the majority and the minority in the Labour Court and we would never get the work done.

Mr. Lemass

I think it is specifically provided that the majority view is the finding of the court but in the case of this Bill it is not provided that there shall not be a minority report and if a minority report is received it will be published jointly with the majority report.

Mr. Colgan

If a man is in a minority he should be judicious enough to insist upon a minority report.

Mr. O'Donnell

I have not heard any reason from the Minister for not accepting Senator Douglas's amendment.

Mr. Lemass

The logic of Senator Hayes's argument against putting into the Bill anything he thinks that ought not to be there.

Professor Hayes

The Minister did not yield to Senator Hayes in the other case and only agrees with Senator Hayes when it suits himself. Surely what Senator O'Reilly has said is beyond doubt correct—that the report of the commission is the report of the majority?

Mr. Lemass

No.

Professor Hayes

Certainly, what else? Most certainly. If the commission of three people are asked to make a report the chairman may sign the report as the report of the commission and the dissenting member may elect to say nothing at all.

Mr. Lemass

He cannot be obliged to say anything. There would not be much point in dissenting and saying nothing about it.

Professor Hayes

There is nothing in this section which implies that the public will ever know whether a report is unanimous or not, but all Senator Douglas is asking is that there should be added a statement that the commission is not unanimous if it is not unanimous. The Minister is arguing with great ingenuity but with very little simplicity and entire inaccuracy about what the section means.

Mr. Lemass

I think it is the other way round.

Professor Hayes

I think it is a very slick and disingenuous argument the Minister is making here against Senator Douglas's amendment, but let us have his real reasons. There is no use trying to persuade anybody in this House that as this section stands you will know necessarily whether the commission is unanimous or not. This section, as drafted, allows without any doubt whatever, the commission to make a report without mentioning that anybody has dissented.

All Senator Douglas wants—I do not say I want it, but all Senator Douglas wants—is that where there is a dissentient that should be stated. The Minister does not want to put anything into the Bill which will make it the law to state that there has been a dissentient. He is quite wrong in stating that the commission, if there is a dissentient, will show that in its report. It will not necessarily do so. There is nothing to provide that if the commission contains a dissentient that will be obvious. It will not be obvious.

Mr. Lemass

It will be obvious if the dissentient member wants it to be obvious.

Professor Hayes

Yes, if the dissentient member wants it to be obvious. The Minister is now shifting his ground—shifting away from Senator Hayes in one direction and towards him in another. There is nothing in this section to meet the amendment of Senator Douglas, which should be discussed on its merits. This amendment will make it obligatory that where the commission is not unanimous there will be an indication of that in the report. One member, two members or three members make an investigation and then make a report to the Minister. On this Section 8 that report is made by the commission—presumably three members—to the Minister and there is nothing at all in this to indicate if there is a dissentient.

There is power, of course, for the dissenting member to express his dissent, but there is no doubt whatever that the report of the commission, the opinion of the commission, mentioned in sub-section (3) may be the opinion of the majority, and there is no obligation on the commission to state that there is a dissentient. What Senator Douglas wants is that where the commission is not unanimous that shall be stated.

Mr. Hawkins

I think it would be very bad for the House to accept this amendment. The Bill proposes that the commission to be set up composed of a certain number of persons should make a report, and as Senator O'Reilly stated, we must accept that report as being the report of the commission. Should any member of the commission have very strong views on any particular matter of the report to which he would not be prepared to subscribe, then he has an alternative; but I think it would be very bad that we should compel that person to make known his views on the matters that he may not be prepared to agree with or on steps that the report in general may recommend should be taken. To accept this amendment as it is—that it should be stated as to whether the report was unanimous or not—I think would nullify the whole effect of the report. Therefore, I would ask that it would not be accepted.

Mr. Douglas

Apart from the question as to what may happen in the future—and I think the Minister will agree with me that he does not really know, and neither do I, what will happen in the future—we will agree that there is nothing in this Bill to prevent a minority report. What I wanted was an indication that because of the peculiar nature of the functions of this commission the public, and particularly the Oireachtas should know whether it was unanimous or not. The first analogy made by Senator Colgan is not to the point. I would remind him that one of the principal functions and one of the reasons of the success in so far as it has had any of the Labour Court is that it does not make the law and it does not involve anything that is binding.

There is no compulsion. Now the commission we are proposing to set up in this Bill recommends the making of the law, and it is going to set up what will be a trade code in a great many industries and in distribution over quite a few years. If it makes serious mistakes they could be disastrous. If it makes small mistakes they could be harmful. But it is extremely important. Senator Summerfield on a previous occasion drew the attention of the House, and I also on the Committee Stage made the same point, that if in six months' time the results had been so disastrous it might be necessary to come along and change it.

My point simply is that where you set up a commission which is not simply to find facts but which is to decide what is desirable and when the Minister of the day must explain to the Oireachtas in public if he is willing to accept the majority report, in those circumstances he should indicate whether or not it is unanimous. The Minister's attitude if I understand him correctly is that there is nothing to say whether that shall be done or not. It would be futile for me to press this against the Minister, but I do not think the debate has done any harm because although it is not in any sense legally binding we have had the assurance of the Minister that there can be minority reports. That may be of great value, and I am glad I put the amendment down. I ask leave to withdraw it.

Amendment, by leave, withdrawn.

Government amendment, No. 5:—

In page 4, Section 9, sub-section (1), paragraph (f), line 19, after "in regard to" to insert "restrictive practices affecting".

Mr. Lemass

In the course of the discussion in Committee a number of Senators suggested that the wording of paragraph (f) of sub-section (1) of Section 9 might be interpreted as empowering the Minister to impose conditions as to the supply and distribution of goods in cases where there was no question of restrictive practices. I undertook to consider if it would be possible to amend the paragraph to make it plain that it would be used only in cases where restrictive practices existed and I am submitting this amendment for the purpose of clarifying the intentions of the Bill.

Mr. O'Donnell

I welcome the amendment because this sub-section was very disturbing to quite a number of people. It gave extraordinary powers to the Minister as it was expressed in the Bill but I think the position is now clarified by this amendment and I will support it.

Mr. Douglas

I think it would be much better to take the words "unfair practices" in conformity with the Schedule at the end. There are unfair practices which are not restrictive and will be dealt with later. I think the word "unfair" would be probably wider and better.

Amendment agreed to.

Mr. Douglas

I move amendment No. 6:—

In page 5, Section 14, sub-section (1), paragraph (a), line 29, before "continuing" to insert "second and".

On the Committee Stage I drew attention to Section 14 although I had no amendment down. Since then I have consulted a more or less eminent lawyer and he agrees with me that there is a serious danger that what I thought the section meant may turn out to be correct when it comes, if it ever does come, before the courts. The section as it stands seems to me to provide that on the first prosecution it could be that a person had committed a continuing offence for three months, six months, nine months or whatever it is and, therefore, could be immediately liable for a very high fine for something which he did not know and could not be certain was an offence until the case was decided.

Now, the suggestion I make is that £500 for the first offence is perfectly adequate, but that only in the case of a second offence ought there to be a heavy fine and for a continuing offence £50 for every day for a more or less unlimited period. I am advised that that would clarify the position and make it much more workable. As it is, there is to my mind a flaw in the sub-section.

Mr. Lemass

The penalty to be imposed for a breach of the law is a matter for the courts. The only effect of the provision in the Bill is to fix the maximum penalty. Senator Douglas wants to provide that a person who breaks the law may get off lighter the first time than after the second offence. There may be a case for that, but it should be argued in the courts. There is no reason to assume that a first offence would be less serious than a second. It would be entirely wrong to give the dog its first bite in this case after the Oireachtas has laid down the law. We are only fixing the maximum penalites. The actual penalty in individual cases is entirely a matter for the courts. If the court thinks that there are extenuating circumstances, the fact that it was a first offence might justify the mitigation of the penalty.

Professor Hayes

Surely the offence does not begin until a conviction has been got?

Mr. Lemass

The offence has begun the day the trader concerned breaks the law.

Professor Hayes

That is a very curious situation. I have no brief for these people, but it raises a curious legal situation. Surely it is when you are brought into court that you discover that you are guilty?

Mr. Lemass

Oh, no.

Professor Hayes

You cannot discover it beforehand.

Mr. Lemass

If the defence—that is, if there is a defence—is that the particular act complained of is not a breach of the law and if the court agrees, there would be no conviction. But if the court holds that there was a breach then it began on the day that the offence was committed.

Professor Hayes

Surely, if the court is going to impose the penalty of a fine not exceeding £50 for every day for a continuing offence it should be for the period subsequent to the time of conviction. Surely, that is only justice. The position is that an order is made, a person is prosecuted under the Order and the court finds that the Order has been contravened. Is it right that the court should be able to find that it was a continuing offence for ten, 30, 60 days? It seems extraordinary. Would it not be more in accordance with justice—to which even manufacturers are presumably entitled —that there should first be a conviction? If there is a second offence, then I have no sympathy with the person and I am quite prepared to agree that if convicted for this second offence and for every subsequent offence for which he is convicted he should be fined the £50 a day for the period of the continuing offence, that is, the period during which he continued the offence in spite of his knowledge that the court had adjudged it to be an offence.

Mr. Lemass

The Senator is talking about a hypothetical case. Let me give him another case. Some trader, knowing clearly what the law is, decides to break it for his own profit and gain, and continues to do so until he is brought before the courts. In that case why should there not be power to relate the penalties imposed to the length of time over which the offence was continued.

Professor Hayes

Surely, it is only when the court finds him guilty that he can become aware of the offence?

Mr. Lemass

That is the case the Senator is dealing with, but I am dealing with an opposite case. It is the court's duty to establish whether there was a reasonable doubt in the mind of the accused man as to whether his act was in contravention of the law. I think we should fix the maximum penalties and let the courts decide what is appropriate to the individual case. If the argument is that a first offence should be penalised less than a second I am opposed to it. A first offence may be the more serious offence. After a number of people have been prosecuted for a certain offence people will be less likely to engage in that particular act. But where there was no doubt whatever about a trader's knowledge of the law, and that what he was doing was a breach of the law, I see no argument against relating the penalties to be imposed to the length of time of the continuing offence even where it was a first offence.

Mr. Douglas

I think there is much more in this amendment or rather in the situation visualised than the Minister sees. Is it not absurd in a Bill of this kind in which we are providing for an offence which may never occur—because there may never be an Order—to be passing on to somebody else the obligation of setting up a court? On that being done, the Minister is to provide an Order of which nobody has any experience and on which the ablest lawyers will find the greatest difficulty in giving advice. Yet we are fixing a penalty by which a person who is convicted of a breach of that Order up to a year previously may be fined £18,000 at a maximum. That is out of proportion to the worst offence contemplated under the Act.

Mr. Lemass

It is a matter for the courts.

Mr. Douglas

The kind of person I have in mind—and I have wide experience of business—is a person who will find extreme difficulty in knowing exactly what the meaning of a certain Order is. If people break the law they will have to pay for it but, in addition, to fix a maximum penalty of £50 a day over six months, 12 months, two years, or whatever the period may be, is absurd. There will certainly be doubts as to whether a particular procedure is or is not within the Order.

I do not claim that my amendment is the best, but it would be better than the Bill as it stands and could do no serious harm, because there is an adequate fine provided for a first offence. I am prepared to deal very harshly with a person who has been convicted and who then does it again, but I am not at all in favour of any harsh treatment for the person who inadvertently commits an offence, or who is unable to know exactly the position and who carries on as he was carrying on before. With such experience as I have, I can see very great difficulty arising. I think the Minister sees these difficulties as well in relation to trade practices and will admit that, with the best will in the world, there will be doubts. Until there has been some decision, it will be very difficult to get advice from solicitor or counsel and I feel that we are overdoing it by providing a penalty so high as that prescribed.

On the Committee Stage, the Minister gave me the impression that he thought a continuing offence could only apply after there had been a conviction. I am advised that that is not correct and that the position is that the very first person convicted will be liable to the penalties prescribed for a continuing offence from the date on which the Act passed into law. I think that is overdoing it and unnecessary I am disappointed that the Minister did not see some way of meeting us. It would be futile to press the amendment, but I still feel that he has not met the matter reasonably.

Mr. Lemass

The penalty would be far too low on any other basis.

Amendment, by leave, withdrawn.

Amendment No. 7 not moved.

Government amendment, No. 8:—

In page 6, First Schedule, paragraph 1, subparagraph (3), line 22, before "temporary" to insert "additional" and in lines 22 to 24 to delete from "Not" to "inquiry."

Mr. Lemass

This is a drafting amendment.

Amendment agreed to.

Government amendment No. 9:—

In page 7, First Schedule, paragraph 5, subparagraph (1), line 15, after "two" to insert "permanent members."

Mr. Douglas

This is the only thing we agreed on.

Amendment agreed to.

Bill, as amended, received for final consideration.

Agreed to take remaining stage to-day.

Question proposed: "That the Bill do now pass."

Professor Hayes

This Bill is a Bill with the object of which I have considerable sympathy. If there are restrictive trade practices which operate unjustly or unfairly against the public, clearly something should be done about them but the method adopted in this Bill is an interesting example of the type of legislation which is, I think, all too common. Undoubtedly, it extends the powers of the Minister and the State, and, as I said on Committee Stage, it gives to a Minister, who already has immense jurisdiction and manifold duties, a further very difficult duty to carry out. It appoints three persons as a fair trading commission under Schedule 1. These three persons have no qualifications set out for them. Persons who are put in judicial positions must possess certain qualifications before they can be put into these positions, but no qualifications of any kind, no experience of any kind, are set down for these three people.

They will investigate facts and their investigation of the facts will, of course, depend on their own mentality, their own outlook, their own knowledge and experience. They will then interpret the facts and declare certain conclusions. In declaring these conclusions, they will be obliged to interpret the Second Schedule which consists of paragraphs (a) to (k) and in every single one of which there are such words as "unreasonable", "unjust", "unfair", "contrary to the public interest", "without just cause" and so on. In every one of these, there are matters in respect of the interpretation of which there are no legal or, so far as I know, other principles. If there are, these people are not necessarily qualified to do it. If the Minister accepts the conclusions, he puts them in an Order and, this having become the law, a new set of offences has been created with certain penalties.

The function of the ordinary courts is merely to determine whether the company or the individual prosecuted contravened the Order made. They have no other function. It is quite usual—it is, I think, a legal principle— that ignorance of the law excuses nobody, although that principle was a much better one long ago when the law was not so complicated or so voluminous as it is at present; but the Bill will not contain any list of offences. There are no offences set out in it and no principles under which offences can be determined. The Minister gave as one of the saving clauses in the Bill that, when Orders are made by him and submitted to the Dáil, they can only become operative when they have passed into law as a Bill is passed into law. It transpired during the Committee Stage that that, as a safeguard, is quite illusory.

It is not the Minister's intention that these matters shall pass through the ordinary legislative processes, through several stages in the Dáil and in the Seanad. His idea is that the Order made by the Minister shall be rejected or shall become operative as it stands, as it comes from the Minister and that, then, his commission and his servants and himself having come to a particular conclusion, no member of the Dáil or Seanad shall be allowed to interfere with that conclusion or amend it in any way. With regard to that, I should like to suggest that the Minister himself may be under an illusion because it seems to me that under the Constitution this House has the power to amend any Bill which is not a Money Bill, but that, I suppose, is something to be dealt with later on.

The only thing that remains to be said about the Bill is that it is an extension of the powers of the State. It seems to me to be very doubtful whether it can accomplish the objects it sets out to accomplish, because of its extreme vagueness. We are starting on a new sphere and these people will make their own precedents, and people who are suspected of an offence or who think they may be committing an offence have no means of knowing whether they are offences or not. All the discussions which took place here go to prove that the processes of trade are so complicated and it is so difficult to make up one's mind as to certain sets of facts that the whole matter is very difficult indeed and the high hopes based on the Bill that it will reduce prices and do other things of that nature seem to me to be illusory, but it is another example of the type of legislation which seems to be entirely in the modern mode and to which the present Minister is peculiarly addicted.

Mr. Summerfield

Now that the Bill is about to pass into law, it is as well to dot one or two i's and to cross a few t's. I want to stress what I said on the Second Reading, that some of the organised industrial bodies—and I am speaking for the Associated Chambers of Commerce, the Federation of Irish Manufacturers and the Society of Irish Motor Traders—had committees dealing with this Bill in its draft form and naturally they followed the debates in the Dáil and Seanad. Not one of these bodies, weighing up their responsibilities, were hostile to the motives which animated the Minister when he brought in this Bill; but, even now, when the Bill is about to become law, I must confess that the uneasiness and suspicion with which these various bodies viewed the Bill still persist, and, in one direction at least, I think they have been increased by the statement made by the Minister as to how he interprets the words in the Bill "Act of the Oireachtas".

When these various committees were going into the details of the Bill to see in what way they could suggest amendments—and again I want to pay a tribute to the Minister for the courteous way in which he received these suggestions, some of which he adopted —they all felt that in respect of a Bill which, in general terms, because of its doubts and of its vagueness, was obnoxious and could be very hurtful, there was some little safeguard in the words "Act of the Oireachtas".

It was felt, when the fair trade commission made an Order or suggested an Order to the Minister and he submitted it to the Dáil, that the words "Act of the Oireachtas" meant that the suggested Order could be, if it was felt desirable to do so, modified and amended in either House of the Oireachtas. We are now told that the Order, once it is submitted to the Minister from the fair trade commission and approved of by him, is to all intents and purposes, law. The Oireachtas is in the position that it can accept an Order so made or reject it, but it cannot amend it. These debates were long—they were long because of the important matters with which the Bill dealt.

This commission, this unknown body of men, will have power to suggest to the Minister in their proposed Order that established trade practices, which have generations of experience behind them, are, in their opinion, bad and hurtful to the community. Only time will tell whether the commission will abuse these powers. This commission will decide after a cursory examination —the examination will of necessity be cursory having regard to the question of time—whether practices are inimical and hurtful to the community and they can suggest the imposition on trade, commerce, manufacture and distribution of an entirely new set of conditions which could—I am talking about the powers in this Bill—strangle industry.

All organised industry in this country is heartily behind the Minister in his opposition to rings which, in dealing with standard articles of identical quality, try to create an artificial price structure. All the bodies with which I am associated are as dead against these rings as the Minister is. I can only hope that in regard to the immense field with which this unknown body of men will have to deal, all the fears and suspicions of industrialists, manufacturers and distributors will not, in fact, be realised.

Mr. Burke

I am afraid that trade and industry will now know what an offence is until such time as they know the policy of the fair trade commission. I think that the fair trade commission should warn people who, they believe, are infringing this Act that is about to be passed and allow them to amend their ways before bringing their case before the fair trade commission.

This Bill is in its construction very vague and wide. It strikes me that a great deal of difference in emphasis will arise because of the change in personnel of the board from time to time over the years. With the advent of different Ministers and different personnel on commissions, you could certainly have a different view as to what was fair and what was unfair trading. It would be a great safeguard if the Minister, when setting up this fair trade commission, ensured that it would be the duty of the commission to inform traders or manufacturers that they were, in the opinion of the fair trade commission, offending against that commission.

One of the things we must do in this country is to give confidence to manufacturers and young men and women to enter into speculative, competitive trade. To-day the tendency is to play safe; get into a job rather than get into something in the nature of trade and industry. If this Bill is going to succeed, the best and most active brains, the strongest and most intelligent young people must be encouraged to enter into industry. I would not like to think that a Bill such as this would act as a deterrent to young people who are about to embark on the journey of life.

Mr. Douglas

I do not propose to take up much of the time of the House on the Final Stage, but there are a couple of points I want to make. First of all, I want to say, briefly, that I agree with practically everything said by Senator Summerfield on this stage. I think that much of what he said is more important than is generally realised. Almost all organisations who have considered this Bill during its passage through the Dáil were convinced, when they were assured both by the Minister and various statements in the Press, that no Order could be made which would have the force of law until confirmed by an Act of the Oireachtas. They thought that an Order could be amended if it was found during discussion that any serious error or some undesirable matter was to be found in the Order. The Minister, however, has made it clear on the Committee Stage—he was not clear on the earlier stages—that as far as he was concerned he hoped to be able to prevent the amendment of any Order. I think it was on the Second Stage that he said the Bill could be amended.

I have looked into the matter since that debate and I have come to the conclusion—I put it forward for what it is worth—that nothing short of an amendment of the Constitution could take away from this House the right, if it so wishes to exercise it, which is provided in Article 20 of the Constitution, Section 1, of which states:—

"Every Bill initiated in and passed by Dáil Éireann shall be sent to Seanad Éireann and may, unless it be a Money Bill, be amended in Seanad Éireann and Dail Éireann shall consider any such amendment."

It may be argued that the Bill will simply confirm an Order and that there is no provision for the amendment of the Order. My considered opinion— and I am speaking entirely for myself —is that there is nothing in our Constitution or our present Standing Orders to prevent an amendment to the effect that the Order is confirmed, subject to the deletion of a particular section or particular words.

In spite of what the Minister says, any Bill passed by the Dáil, other than a money Bill, can be amended by the Seanad. If an error is made in a proposed Order, I think there will probably be a larger measure of consent towards amending it. I think it is much better that it should be amended here than have it sent back to the Minister for alteration. I sincerely hope that this will only be a temporary measure. Freedom within the law is the only healthy way in which we are going to get good trading and increased production generally. I think it is bad if you have a body that is liable suddenly to bring in new laws in respect of which there is no accepted principle.

I agree that unfair practices do exist. I definitely agree that rings exist, and I am strongly opposed to those rings. I think that it would have been far better to deal at once with these by legislation. I admit that, even if you had dealt with them you would have to deal with the many intricate matters that must arise. I would prefer to see these dealt with by an Act which operated for a few years. In that event, the various Orders made might, in the course of a few years, be capable of being codified, and then the commission could be abolished. I think that a permanent Act to deal with unfair practices of this kind is not good and may do a considerable amount of harm.

I have criticised the Bill in many ways, and I am disappointed that the Minister did not see his way to amend it in certain respects. I repeat what I said at the beginning, that, in the case of a Bill of this kind, once it becomes law, I hope that every trade association and other similar bodies affected by it, or that may have to assist and give evidence before the commission, will do so with a genuine desire to make the Act as good as it can be made.

Mr. Lemass

Senator Hayes represented me as the kind of Minister who likes to take more and more power to interfere in and to control economic activities. For fear that accusation might be made I want to say that I framed the Bill in its present form. This is a Bill which gives the Minister the minimum powers which he could conceivably require to get action taken towards the elimination of undesirable restrictive trade practices.

What are the Minister's powers under the Bill? He can nominate the members of the fair trade commission; he can receive the reports of that commission, and he is required to get their reports published to the Dáil. On the basis of their reports, he may make Orders which can have no legal effect unless confirmed by an Act of the Oireachtas. Surely, if I were anxious to acquire powers and interfere in economic activities, I could have done better than that.

Mr. Baxter

Can the Minister not also fire the commission?

Mr. Lemass

I assume that the word "appoint" includes the word "remove." Some Senator said that no offences were set out in the Bill. No offences, so far as the public are concerned, are created by this Bill. Nothing follows the enactment of this measure except the appointment of the fair trade commission. When it is appointed, it proceeds to hold its inquiries. These inquiries can lead to action but until then there will be no change so far as trade and industry are concerned. Senator Burke said that traders should be allowed time to mend their ways. I am all in favour of that, but I want them to know that the time starts to run here and now, from to-day. Now that this Bill is passing its final Final Stage in the Oireachtas, the time is beginning to run, and if they want voluntarily to renounce undesirable restrictive trade practices they still have time to do it.

Mr. Baxter

Are traders as bad as that?

Mr. Lemass

They will be conscious of the fact that, in a few days' time, there will be a body which will have power to inquire into these practices and machinery for eliminating them compulsorily.

I have time and again said, during the course of the discussions on this Bill, that I would much prefer to see these trade organisations and associations voluntarily putting their houses in order. They have had time since this Bill was first introduced in the Oireachtas to start that particular process but, as I say, the time is running out now. If they want to get into the position that they cannot be made the subject of an inquiry under Section 7 of the Bill, or the subject of an Order under Section 9, they should start to move quickly. I hope they will, and that consideration is being given, in many cases, to the extent to which existing trade practices are in conflict with the principles of this Bill, and that steps towards their reformation are now about to be taken. It is no harm to emphasise that if action is to be taken on a voluntary basis in the case of any trade it will want to be taken quickly.

With regard to the remarks that were made by Senator Summerfield, I want to make it quite clear that in framing this Bill I was thinking of helping Irish industry, in the first instance by removing from Irish industry the suspicion that exists that they are exploiting to the public detriment the advantages which the community has given them to develop their activities. A lot of that suspicion is unfounded, and a lot of it has been deliberately created for political purposes by people who should have known better. But that there is some foundation for it is the firm belief of many sections of our people, and the sooner the cause of that belief is removed, either by exposure of the facts or the reformation of trade practices, the better. I am hoping that, in consequence of the enactment of this Bill, Irish manufacturing industry will be put completely in the clear so far as public opinion is concerned, by demonstrating that it is operating for the benefit of the community as a whole and not resorting to practices which the public would regard as undesirable.

I also want to release Irish industry from the shackles which have been imposed on it by various trade organisations. Many manufacturers have complained to me about restriction on their development, involving pressure put upon them to market their products through limited channels or through members of particular associations and to be told that they will get no support and, in fact, may encounter the active opposition of these associations, if they try to sell outside the ranks of their members. I hope that a lot of these restrictions on industry will go as a result of this measure, and that industry will benefit in consequence.

With regard to the Acts which may be introduced in the Oireachtas to confirm Orders made by the Minister, I only want to say that I have no intention of changing the Constitution, or doing anything that would deprive members of the Oireachtas from exercising the powers they possess. They will continue to possess the powers they have to amend legislation. Whatever amendments are to be made in subsequent legislation will have to be decided in the ordinary way by a majority vote.

I do not think that this should be a temporary measure. On the contrary, I think that some such body as the fair trade commission will always be needed. We need a policeman at this crossroads. I believe that free enterprise can confer more benefits on the community of this country than any other type of economic organisation, provided it is allowed to work. At the present time it is not being allowed to work freely by a number of trade associations and trade rings, and I think that we will always require a policeman to see that the path of progress is kept clear of rings, organisations and restrictive practices. With this commission, or some other body that may replace it, we will have an authority with power to control these practices, and to ensure their elimination where they have been proven to be contrary to the public interest. I think that our legislation has been defective in the past by reason of the absence of a measure of this kind. Now that we have got such a measure, I hope that public opinion will never allow it to be repealed again.

Question put and agreed to.