Seanad Éireann debate -
Wednesday, 7 Jun 1972

Vol. 72 No. 16

Restrictive Practices Bill, 1971: Committee Stage.

Section 1 and 2 agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. O'Higgins

I hope I did not misunderstand the Minister, but in the course of his opening statement he made the case that the fact of the existence of a listing of unfair practices in the Third Schedule did not in fact mean that these were practices which were being declared as being unlawful. I am summarising what the Minister said. I can see the force of that argument, but it seems a little difficult to distinguish between practices which are not unlawful but which at the same time by an Act of Parliament are being declared as unfair practices.

The list contained in the Third Schedule are practices which, by and large, people would regard as being unfair practices. I am a little bit bothered about paragraph (f) as to whether or not a strike which might take place regarding some service being supplied might not, on an application to a court of some sort, be automatically regarded as unlawful in the sense that it was listed here as unfair.

Paragraph (f) of the Third Schedule says "without just cause prohibit or restrict the supply of goods or the provision of services ..." I am visualising a case where there is possibly a wild-cat strike, which results in the restriction of the supply or provision of services. I am wondering if, automatically, it would be regarded as unlawful by reason of the fact that it is listed as being an unfair practice.

Mr. Lalor

The Senator draws attention to a wild-cat strike. I should like to point out that, under section 1 of the Bill, the service includes any professional service but does not include any service provided under a contract of employment. That is the type of service where we do have this strike situation.

Mr. O'Higgins

That might not have been a very good example. Take my profession. If we decided that because of a particular grievance we would not appear in court, that is in one sense a strike.

Mr. Lalor

That would be a heck of a reason.

Mr. O'Higgins

I think some members of the profession felt we should adopt that.

Mr. Lalor

That is not a service under contract as employment goes.

Mr. O'Higgins

No.

Mr. Lalor

This is a guideline schedule.

Mr. O'Higgins

I suppose the answer is whether we had just cause or not.

Mr. Lalor

I will not comment on that one. This is the adaptation of the Second Schedule of the old Bill to take in services. I try to spell out what I said originally, that this is a non-statutory provision. It is a guideline provision to the examiner and the commission. The just cause might give us sufficient elasticity as a guideline there.

Question put and agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mr. Russell

When you say "publish", I take that to be published in the national papers? Would that be the normal procedure?

Mr. Lalor

Yes.

Mr. Russell

It says:

... the Commission shall cause to be published in such a manner as they think fit notice of their intention to do so

—that is to make fair trading rules.

Mr. Lalor

This has been the experience. There would be no useful point in making fair trading rules without taking steps to ensure that they would become well known. We may take it that publishing in this context would be to make use of the national papers.

Mr. O'Higgins

Is it the publishing of the notice of intention that Senator Russell is talking about in subsection (2)?

Mr. Russell

Yes.

Mr. Lalor

This would visualise a situation whereby the commission would need to ensure that affected parties would be notified by the publication of the rules.

Mr. Russell

The Minister will agree that it is quite normal in Bills to write in "one or more national papers circulating in the State."

Mr. Lalor

In practice in fact the existing Fair Trade Commission publish information in the newspapers.

Mr. Russell

They have in the past.

Mr. Lalor

I anticipate the commission following the same practice.

Mr. Russell

It is quite usual practice in other Bills to write in one or more papers circulating in the State. It is open to the Minister not to put it into the papers if they so desire. Persons affected might not have an opportunity of knowing that fair trading rules were to be written.

Mr. E. Ryan

It might be much more appropriate to do it in some kind of a technical magazine.

Question put and agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mr. Russell

I am just wondering if the Minister is bringing unnecessary trouble on himself.

Section 5 (1) (a) states that:

The Commission shall, on the recommendation of the examiner or at the request of the Minister transmitted by the examiner, and may, on application by any person whose request for an inquiry has been refused by the Examiner, cause an inquiry to be held——

Will the Minister get a great number of appeals from individuals or groups arising from this? I am trying to ensure that we will not have a situation in which the case of a person who has a legitimate grievance could not be brought before the commission because of an unreasonable examiner or Minister, both of whom refused to hear the case of the offended party. The "may" here in that context is an enabling provision to allow the commission to proceed, if they feel that the examiner or the Minister has been unreasonable in not allowing the application by the person for an inquiry to be recommended. The Senator said that I was being hard on the examiner and myself. I presume he meant that the Minister is being hard on the commission.

Mr. Lalor

I do not accept this.

Mr. O'Higgins

It is not the Minister's refusal here, it is only the examiner's.

Mr. Lalor

It is the examiner's. On the other hand, the Minister may direct the examiner and we can assume that this person may have been complaining to him about the examiner. He writes to the Minister saying that the examiner would not hear his case and asks him to intercede. If that does not work his chances of getting through to the commission are not good.

Mr. O'Higgins

To go to the commission, he must get a refusal by the examiner anyhow.

Mr. Lalor

He does not necessarily have to be refused by the Minister, but he must be refused by the examiner.

Mr. Russell

That is all he has to do.

Mr. Lalor

He would need to have a very strong and justifiable complaint about the circumstances surrounding the examiner's refusal, in order to justify him going to the commission.

Mr. Russell

I was trying to save the commission and the Minister indirectly from frivolous and unwarranted complaints, because a person has only to put forward such a complaint to be refused by the examiner and he then can appeal to the commission. The commission's time could be taken up dealing with frivolous or unwarranted complaints by an irresponsible person or "crackpot".

Mr. O'Higgins

But the commission do not have to have an inquiry. They can refuse.

Mr. Russell

No, but they have to deal with it. Their time is taken up dealing with these refusals by the examiner. I would be very slow to inhibit the rights of any individual to appeal to a higher body, but I thought the main purpose of the Bill was to give the examiner full powers and a statutory position to inquire into the needs of sections of trade, industry or professional services which require examination. It is a very responsible task.

To some degree, it is degrading the examiner to say that any individual, irrespective of how frivolous his complaint is or how irresponsible he is, can take up the time of the commission if he gets a refusal from the examiner. Are we going too far in our desire to see that the rights of the individual are protected? I would assume that the examiner would not refuse any individual or body without very good reason. This suggests that the examiner might not be doing his job properly. This is the point I wish to make.

Mr. O'Higgins

I take a rather different view from Senator Russell on this point. I think it is as well to have vested in the commission the ultimate power of decision in a case of this type. Under the section as it stands, it is not in any way obligatory on a person with a grievance to go to the Minister. I agree that the likelihood is that a person, if he was refused by the examiner, would quite conceivably go to his local Deputy or Senator and have representations made to the Minister to see if he would ask the commission to hold an inquiry. So far as the Bill goes, what is envisaged is a request to the examiner to have an inquiry held on a refusal by the examiner. We do not know who the examiner will be or who may be appointed in the future. We may find that a situation will exist at some stage where an examiner takes a very much harder line than the first or second examiner appointed. It may be that grievances would arise out of a refusal of an examiner to hold an inquiry. It is well that the ultimate discretion should be left to the commission as to whether or not, on their consideration of the representations made by a party who has been refused, and in all the circumstances, an inquiry should be held or not.

I appreciate Senator Russell's point that, if there was a flood of refusals by the examiner and a flood of appeals following those refusals, there might be some administrative difficulty on the part of the commission in dealing with them. What will happen is that a stereotype letter will be prepared well in advance, leaving a space for the reason of the refusal to be filled in, and all that will be necessary is for some official of the commission to say that the reasons there is a refusal are 1, 2 or 3, insert them in the blank space and send the letter to Mr. X.

Mr. Lalor

Senator O'Higgins has spelt out what will justifiably happen in relation to the frivolous crackpot's application. On the other hand, we must make provision for the borderline case and for the situation in which somebody makes a complaint to the examiner and asks him to submit this to the Restrictive Practices Commission for examination. From the point of view of the complainant seeking the inquiry, he feels he has an extremely strong case justifiably, but the examiner in the context of his overall experience has certain distinct points of view on this matter. The examiner can say: "I do not think I can request the commission to hold an inquiry. This is not important enough." By this stage the examiner might have become rather bureaucratic.

We should have a situation whereby the Restrictive Practices Commission have, arising from a submission made to them by the affected party, the power to say: "We will look at this." On balance it is something to be recommended even though it opens the door to a number of unjustifiable applications from individuals or groups for an inquiry. This is why the section specifically states "may"; it leaves the discretion to them. The rest of the section states that the commission "shall" hold an inquiry. If the examiner requests the commission to hold an inquiry the commission must hold that inquiry. If the examiner transfers a request from me, as Minister, it "shall" hold an inquiry. The important thing here is that the door be left open, not for a floodgate, but for the justifiable application from an affected party seeking an inquiry.

While I sympathise with the Senator and respect his view on this matter, it is to be recommended that this accessibility to the commission of an individual for the purpose of obtaining the commission's judgment as to whether he should hold an inquiry should be retained.

Mr. Russell

I do not wish to labour the point but I think the Minister is taking away from the examiner some of the powers specifically given to him under this new Bill where he decided to take from the commission the decision to seek an investigation or inquiry. The Minister has decided: "We will take that part away from the commission. The commission's sole job is to institute an inquiry after they get a request from the examiner, but the examiner will be the man who decides this." Now we have decided that the examiner is not to be sole man who decides it.

Let us take a borderline case. The examiner decides a borderline case against the applicant. The applicant then has the right to appeal to the commission. This is degrading the examiner's position to some degree. I would prefer if the individual had the right to appeal to the Minister concerned as a final resort and the Minister could then instruct the examiner to institute an inquiry as, in fact, he is empowered to do under the first few lines of this subsection. The chain of command shall be preserved and the rights of the examiner should not be diminished in any way. I do not think any individual should be able to go over the examiner's head to the commission. The examiner should be the sole person, unless otherwise instructed by the Minister, to decide whether or not an inquiry should be instituted. I would give the right to the individual to appeal to the Minister concerned if he is dissatisfied with the examiner's ruling. That, in fact, could be the position if a very small change in the wording were undertaken. We are lessening the powers and the importance of the examiner by giving this right to an individual.

Mr. O'Higgins

There is a point I want to make on subsection (5). What I have in mind here is relevant also to section 6 and section 18. It is probably more relevant to those sections, but in order to raise the point at the first appropriate opportunity I shall raise it on subsection (5). Subsection (5) of section 5 provides for the holding of an inquiry in public in particular instances and states:

...private sittings may be necessary solely to establish matters of fact the public disclosure of which might materially injure the legitimate business interests of any person.

The same phrase "the legitimate business interests of any person" is used in section 6 (4) and again in section 18. I think it is necessary that there should be such a provision here but I expressed concern on the Second Stage regarding the position of cients of solicitors or patients of doctors. While the provisions in section 5 (5), section 6 and section 18 seem to be perfectly adequate and make a reasonable effort to prevent injury to the business interests of a person whose profession or trade is being investigated, it does not seem that these provisions extend the cloak of confidentiality to the clients or the patients of members of the legal or medical professions.

I should like the Minister to consider—I do not think it would weaken the Bill in any way—in all such cases the deletion of the word "business" and refer instead to the "legitimate interests" of any person. By doing so the scope of these sections would cover not only the person involved, who may be a solicitor or a doctor, but would also extend to cover the clients or patients of the solicitor or the doctor. It does not appear to me that the word "business" is necessary in this context. It limits the application of the sections I have mentioned while I believe the intention of the Bill is to safeguard the legitimate interests of those people not merely the business interests. In the case of clients of solicitors, information regarding a client garnered by the authorised officer of the examiner might find its way into a report or might be given in evidence in an inquiry, because it has not got the protection which is afforded to the solicitor himself in the example I am giving.

I should like the Minister to look into this matter. My point would be ness" and by doing so I do not think the Minister's intention under the Bill would be interfered with in any way.

Mr. Lalor

That sounds quite covered by deleting the word "business". We have the situation here where quite an amount of the phraseology is tied in with the original legislation. This subsection corresponds with section 7 (6) of the 1953 Act which enabled the commission, when conducting an inquiry, to hold private sittings to avoid the disclosure of confidential information which might materially injure the legitimate business interests of any person.

In relation to this subsection, the power under the old Bill has been criticised on the grounds that the evidence given at private sittings may not be confined to matters of fact, which is what is aimed at here. It may not be confined to matters of fact, which to the persons giving evidence but may also include expression of points of view. Such evidence is not open to challenge by other parties to the inquiry.

Subsection (5) of section 5 re-enacts subsection 7 (6) of the 1953 Act, but provides that private sittings may be called merely for the purpose of establishing matters of fact of a confidential nature. In fact, the confidential nature is emphasised to prevent the legitimate interest and it covers legitimate business interests. There is the other aspect of it in the service end.

I am not saying that I am converted to Senator Russell's point of view on this, but what struck me is that I explained in my introductory speech that one of the advantages of creating this post of examiner as a filtering ground, or whatever one might like to call it, between the general public and the Fair Trade Commission was that the new commission would not appear to have had any definite opinion before they would hold an inquiry. Acceptance of the application of somebody seeking an inquiry over the head of the examiner, or despite the fact that the examiner has refused to recommend it, brings about the type of situation that the commission are appearing as technically in favour of the person who has gone over the examiner's head. The Senator made this point and it is a reasonably legitimate one which I should like to assess fully. When I am looking at one aspect of this section, there is no reason why I should not look at the other one as well.

Mr. Nash

When the Minister looks at it, I sincerely hope that he will not accept the change proposed by Senator Russell. The very same situation arises in other instances, even in our courts. When a man is convicted of a crime, he has the right of applying to a judge for leave to appeal, which may be refused. He then has to go to the Court of Criminal Appeal for leave to appeal. The Court of Criminal Appeal actually hears the case then, and nobody could suggest that they are presupposing.

My view is that Senator Russell's contention is rather illiberal and that it will lead to what could be looked upon at least as the very worst type of bureaucracy, where you are depending on one man from whom you have no right of appeal. In this case, as the Bill stands, you apply to the examiner for a right, saying that you want an inquiry. A group, be it a profession or any other people, may feel that they would like, if necessary, a public hearing, if they can stand over whatever increase they are seeking. For some reason, the examiner refuses. They then have a right of appealing to the Minister. The Minister may or may not refuse. The examiner may say: "O.K., you may appeal or you may have your hearing before the commission." In most of these cases the Minister does not like to appear: he is always faced with the objection that this is political and he does not like to use discretion except to the minimum extent. Therefore, there is the right of going to the commission and saying: "We came before the examiner. He refused us permission to come to you and to have a full-scale inquiry into this. We feel we have good grounds and we are asking you for permission to appeal."

In most cases there should be a right of appeal. The whole thing is held in public and nobody is going to make a claim that they cannot support in public. If everybody is allowed the right of appeal, everything will be cluttered up. There must be some common sense in it. Therefore, they go to the examiner. If he is being autocratic, or bureaucratic, they go to the Minister. The Minister says: "I do not like interfering in these things. I prefer to leave it between those people who are responsible. I do not want somebody to say to me that it is political." Then one has the right to go to the commission and say: "We want to appeal. If you are not overcrowded, we would like you to hear our case." There is no such thing as prejudgment. The more rights of appeal that people have in those cases the better, so long as we do not clutter up the whole machinery. I sincerely hope that the Minister will not give way to that illiberal suggestion.

I would be wholeheartedly in favour of the point raised by Senator O'Higgins. Formerly, the Acts dealt with businesses only. Therefore, they were concerned only with business interests. This deals with professional matters. It would make some people very doubtful of going ahead. If the ordinary person, not the professional, felt that his private affairs could become the subject matter of a public hearing he would be slow to give evidence at all, and his evidence might be absolutely essential for the purpose of ensuring that justice is done between the profession and the public. I should like to support Senator O'Higgins's amendment. I should like to oppose very strongly the suggested amendments of Senator Russell.

Mr. Russell

I should like to say a word of reply to Senator Nash.

The Minister very righly made the proper assessment, arising out of some comments of mine, in his speech on the Second Reading. Perhaps I should read it again: Senator Nash may not have been in the House at the time. It reads:

The division of functions between the commission and the examiner is also designed to remove any feeling that the commission, because it has both investigatory and adjudicatory functions under the present legislation, may not approach inquiries in a completely detached and impartial manner.

I made the point, I think very validly—I do not mind being accused of making it illiberally, if it is a valid point—that giving the right to an individual who secured a refusal from the examiner on a borderline case to appeal to the commission was, in fact, cutting across the very purpose of the division of functions which the Minister outlined in his speech and which was quite correct. However, I did emphasise—and perhaps Senator Nash did not hear me—that any individual should have the right of appeal. I would hate to think that a Minister was made of such poor stuff that he would turn down an appeal on the grounds that he might be accused of political interference. My experience of Ministers of all political persuasions is that they are not made of that kind of timbre generally. There are possibly some exceptions. If a Minister was to adopt that attitude, to my mind he would be abrogating his duties and responsibilities as a Minister. The Minister's desk is where the buck should stop and, if he is not prepared to accept that responsibility because of some invalid criticism, then he should not be in the job.

Any individual who is aggrieved by the decision of the examiner should have the right to appeal to the Minister who would then direct the examiner to call the commission to inquire into the complaint. That is preserving the proper chain of procedure. It is preserving the division of functions between the examiner and the commission which the Minister rightly wants to create, and it is putting the Minister where he should be put as the judge of last report. That is quite proper; there is nothing illiberal about it. It is a sensible suggestion and completely in line with what the Minister wants to achieve. I hope he will give the matter favourable consideration.

Mr. Nash

The same point arises where the liberty of the individual is at stake, that is, in courts of criminal appeal cases. An accused is arraigned before a judge and jury and if he is found guilty at the close he can apply to the judge before whom the case is heard for liberty to appeal. He sets out his grounds. The experience of most criminal lawyers is that in two cases out of three the judge will refuse because it is tantamount to saying that he has not heard the case properly or has not summed up the case properly to the jury. The accused then has a right of appealing to the Court of Criminal Appeal for the right to appeal. In at least 70 per cent of the cases where the judge has refused, the Court of Criminal Appeal will grant him the right. That does not mean that they are prejudging the case.

For many reasons I would be totally opposed to having the buck stop ultimately on the Minister's desk. It is giving control to the Civil Service over all professions and over all businesses —because the Minister's ultimate resource is the Civil Service—and I think that would be very bad. The examiner is supposed to perform a semi-judicial function. He is supposed to be completely impartial, but to rely on the judgment of one man is not good enough. It at least gives the suspicion of bureaucracy. The commission is supposed to be completely impartial. I would hate certain professions, including the legal profession, to be under the control of any Government Department, because frequently the rights of the citizen and the rights of the Executive are not the same thing and if you want to muzzle the citizen you can frequently do it. That is what happens in all communistic countries: they muzzle the profession who will defend the citizen against the Executive. Therefore I do not think the case should stay there but that it should be decided by the commission whom I would look upon as an impartial body.

Mr. Russell

I do not think the analogy is a very correct one, because, as far as I know, in a court of law you do not appeal to a lower court but to a higher court.

Mr. Nash

The Court of Criminal Appeal.

Mr. Russell

Surely, in the final analysis, the Minister is the higher court. In any event under the Bill the Minister can do that, so he is not getting any extra powers. I am not asking that there be any changes in the Minister's rights. He may request the examiner to do it. It does not say why the Minister decides to request the examiner; it says the Minister may request the examiner. In the Bill it says—

... at the request of the Minister transmitted by the Examiner.

The Minister already has that right. All I am suggesting is that it would be for the benefit of the working of the Bill if the request came to the Minister via the examiner to the commission. The commission, in the final analysis, would decide the case, but the Minister would only decide whether the complaint was frivolous or worthy of being heard. We must accept the fact that a Minister is advised by his officials, just the same as anybody else is advised, and not just one man. We place a fair share of trust in Ministers in the performance of their functions and we should preserve that trust in the Minister. I would prefer to leave it to the Minister's good sense to decide what is best to be done. I should like to refer to subsections (2), (3) and (4) of section 5. Subsection (2) reads—

Subject to subsections (3) and (4), an inquiry may be held by one or more members of the Commission delegated by the Commission for the purpose.

It seems to me that one person in fact would be deciding or could decide an issue referred to it by the examiner. Subsection (3) says—

Any inquiry shall not, without the consent of the Minister, be held by a temporary member acting alone.

If the Minister gives his sanction a temporary member could then decide a question referred to him by the examiner. Subsection (4) says—

not more than one temporary member may act for the purpose of a particular inquiry.

I would prefer that a minimum of two out of five commissioners would adjudicate on a question referred to them by the examiner of which possibly only one would be a temporary member. The possibility of one person— and that could be a temporary member with the consent of the Minister— adjudicating on a request from the examiner does not strike me as being the best arrangement. I would like to have at least two commissioners out of five acting on a case referred to them by the examiner. There may be practical reasons why this cannot be done. They might have five commissioners all sitting at different times in different areas and possibly that is why the wording is such in the Bill. I would like to see more than one commissioner and possibly a temporary one deciding on the holding of an inquiry.

Mr. Lalor

Let me say, first of all, that I am satisfied with Senator Russell's impressions of the integrity of the Minister, with which I agree totally. As I have already indicated, there are a couple of points that have been made that I propose looking into before Report Stage. I said that Senator Russell had not converted me to his way of thinking but I felt that the situation merited looking into. On the other hand, Senator Nash in the course of his contribution confirmed the justification of the reasons for the inclusion of this arrangement whereby an affected party can make an approach directly to the commission.

There is general agreement that I should look at subsection (5) and the other subsections to which Senator O'Higgins referred in relation to legitimate interests as distinct from legitimate business interests. Subsections (2), (3) and (4) of section 5 are repetitions of the 1953 Act.

I am not saying that that justifies them, but the purpose of subsection (2) is to make it possible to conduct a number of inquiries simultaneously, thus enabling the commission to discharge their duties more expeditiously. This subsection enables an inquiry to be held "by one or more of the members of the Commission delegated by the Commission for the purpose". This has been the practice even when the commission was made up of three and it has worked extremely well. Subsection (3) spells out that a temporary or inexperienced member of the commission acting alone is not adequate to deal with an inquiry.

Subsection (4) states:

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

This means that if a three-man commission is set up to deal with a specific inquiry, that should be made up of two permanent members plus one temporary member. The reasons for making provision for the temporary members in this context are reasonably obvious in so far as one may be dealing, as the commission has done up to this, with specific trades, but now covering the service field, the field of inquiry is probably doubled.

In the various professions there is the danger of somebody sitting on a board of inquiry as a member of the commission of, perhaps three, who would not have sufficient knowledge of a particular subject. Therefore, there is the requirement for the provision of temporary members. This has always been there.

Those are special provisions written into this section to ensure that a specific commission sitting to hold an inquiry on any aspect of trading or service will be qualified so to do. I do not see any reason to change those subsections which were built into the 1953 Act and have stood the Fair Trade Commission in very good stead.

Mr. Russell

The commission under the 1953 Act had only three commissioners. There are five here.

Mr. Lalor

Yes. There were three permanent members before.

Mr. Russell

I can understand that. One out of three strikes me as a better ratio than one out of five. I can see practical difficulties. If you have a number of sittings of the commission, you are limited by the numbers of your commission. You cannot have more than five sittings with five commissioners unless you have temporary commissioners agreed to by the Minister. This brings the Minister into the picture again and rightly so. Wherever possible at least two should adjudicate on a question referred to them by the examiner, who is only one individual.

The examiner decides that an inquiry should be held into a malpractice covering the distribution of goods or the supply of services. He refers it to another individual who has to hold the inquiry. I would prefer if there were two commissioners, one of them possibly temporary, carrying out the inquiry. In saying that, I appreciate the Minister's point that there might be practical difficulties if there are a number of sittings of the commission around the country. Obviously, you will run out of commissioners and have to appoint temporary commissioners, but at least two out of five members should hold an inquiry if that is practicable.

Mr. Lalor

I share that view. Dealing with experience so far, we had three where we would propose to have five permanent members at this state. At no stage——

Mr. Russell

Under a different system.

Mr. Lalor

Yes, but the same regulations were governing it, and at no stage, even while there was provision under the existing legislation for an inquiry being held by one member of the commission delegated by the commission for this purpose, has this ever happened. There were never less than two holding an inquiry and it would be extremely unlikely that the overall commission would delegate the holding of an inquiry to one commissioner.

Mr. O'Higgins

Does the Minister want to consider the question of "business"?

Mr. Lalor

The Senator asked earlier.

Mr. O'Higgins

I was wondering if the Minister had time to consider it and if he were prepared to delete it, we might get the Report Stage this evening. That is the only reason for mentioning it at this stage.

Mr. Lalor

Yes, but that tightens me up on my promise to Senator Russell.

Mr. O'Higgins

True.

Mr. Lalor

If he would release me from that one, we could go ahead.

Mr. Russell

I could obviously release the Minister if he would accept my point of view.

Mr. O'Higgins

I thought it might shorten the proceedings, and there would be no point in suggesting it on one of the other sections if the Minister did not accept the amendment on this one.

Mr. Lalor

Let us accept that I shall be prepared to put down an amendment to leave out the word "business". In the circumstances, there is no point in my asking the House to clear that one.

Mr. O'Higgins

I agree.

Question put and agreed to.

Sections 6 to 14, inclusive, agreed to.

SECTION 15.

Question proposed: "That section 15 stand part of the Bill."

Mr. Russell

I just want to ask what the form of authorisation will be. Section 15 (1) reads:

For the purpose of obtaining any information necessary for the exercise by the examiner of any of his functions under this Act, an authorised officer may on production of his authorisation if so required——

Senator O'Higgins has drawn my attention to subsection (6) on page 9 which sets out that "In this section `authorised officer' means a person authorised in writing by the examiner for the purposes of this section".

Question put and agreed to.

Section 16 and 17 agreed to.

SECTION 18.

Question proposed: "That section 18 stand part of the Bill."

Mr. O'Higgins

This is the third section on which this point arises. I do not wish to repeat what I said. I just wish to draw the Minister's attention to it. This is in subsection (2) dealing with legitimate business interests.

Mr. Lalor

Sections 5, 6 and 18?

Mr. O'Higgins

Yes.

Question put and agreed to.

Sections 19 to 23, inclusive, agreed to.

SECTION 24.

Question proposed: "That section 24 stand part of the Bill."

Mr. O'Higgins

On section 24 I should like to ask the Minister is this the normal wording of an authority to a Minister to prosecute summary proceedings? I presume the actual work of prosecution will be done by the State Solicitor not by the Minister.

Mr. Lalor

Proceedings other than summary proceedings will be brought and prosecuted by the Attorney General.

Mr. O'Higgins

It is purely a question of phraseology. I would have thought he would be prosecuted at the suit of the Minister or something of that sort. If the State Solicitor goes in to prosecute on behalf of the Minister could the point be made that the Bill provides that the Minister is the person who is to prosecute?

Mr. Lalor

He has been doing it since 1953 under the Act I am replacing.

Question put and agreed to.

Sections 25 to 28, inclusive, agreed to.

FIRST SCHEDULE.

Question proposed: "That the First Schedule be the First Schedule to the Bill."

Mr. Russell

Could I raise a point on section 1 of the First Schedule which states:

The permanent members of the Commission shall consist of a chairman and not less than two and not more than four other members, all of whom shall be appointed by the Minister.

I take it that it is the intention of the Minister to appoint the full number to the commission.

Mr. Lalor

This is something that I would not propose to rush into. From my point of view the most important thing initially is the appointment of examiners. It is my intention in the long-term to build up the commission to the chairman and four others, but it would be wrong of me at this stage to say that within a two- or three-month period following the enactment of this piece of legislation I would then have a five-man commission. I would prefer not to be specifically tied to that.

Mr. Russell

I was just thinking about an earlier point I made that wherever possible at least two out of five commissioners would sit.

Mr. Lalor

Yes. If I could again return to the point that having had three commissioners on the Fair Trade Commission up to now and always having a minimum of two of those sitting, I do not feel the problem need arise for a while.

Question put and agreed to.

SECOND SCHEDULE.

Question proposed: "That the Second Schedule be the Second Schedule to the Bill."

Mr. Russell

I would just like to commend the Minister for introducing what does not appear in other Bills. I refer to section 4 which states:

(4) Where the examiner becomes a member of either House of the Oireachtas, he shall, upon his becoming entitled under the Standing Orders of that House to sit therein, cease to hold the office of examiner.

(5) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein shall be disqualified from being the examiner.

In previous Bills a number of Senators, including myself, have objected to the clause whereby if a person offered himself as a candidate he was automatically disqualified for certain offices. I presume the examiner can offer himself as a candidate but if he is not elected he can continue to be examiner.

Question put and agreed to.

Third Schedule agreed to.

Title agreed to.

Bill reported without amendment.

An Cathaoirleach

Next Stage?

Mr. E. Ryan

Next sitting day. I do not think we will be sitting next week so it will probably be this day fortnight. I propose we take No. 3 now.

Mr. O'Higgins

How about No. 4?

Mr. E. Ryan

The House has the option of sitting late to take No. 4 or sitting tomorrow morning. I am not sure if the Minister for Labour is available to take No. 4 now. Could we take No. 3 and then we will find out the position about No. 4?

Mr. Russell

In order to save time I release the Minister from his undertaking to look into section 5. If the Minister accepts the amendment suggested by Senator O'Higgins, perhaps we will get the Bill through.

Mr. Lalor

Yes.

Mr. O'Higgins

Are we going to take the Report Stage now?

Mr. Lalor

If that is possible.

An Cathaoirleach

Is it agreed to take the Report Stage now?

Mr. O'Higgins

There are three agreed amendments—to sections 5, 6 and 18.

Mr. Lalor

The withdrawing of a word in each case.

Mr. O'Higgins

Yes, the deletion of "business". I do not mind whether the Minister or I move them.

An Cathaoirleach

It would be more orderly to postpone the Report Stage. If the Report Stage is to be taken now, we should have amendments in writing.

Mr. Russell

We are agreed.

An Cathaoirleach

Could we take No. 3 now and then return to the Report Stage of No. 2?

Mr. E. Ryan

We will proceed with No. 3.