First of all, I would like to say to the House that nobody gets greater pleasure from the close of the day's work than I do. But we are here proposing to enact an extremely important extension of our criminal law which casts a great deal of responsibility on us as legislators to know precisely what we are doing. I think it may be a happy thing that the Bill is one which cannot possibly cause any disagreement between the parties represented in this House because it was a Bill which moved from one Government to another with perhaps some minor changes that I did not bother to identify but in general it is such a Bill.
Therefore I think we should be concerned to make it as good a Bill as we can. Once you enact a thing it takes a long time again to get that enactment corrected. I speak from great experience on this. You may get full agreements from Departments but they cannot get their Minister's time or the Ministers cannot get parliamentary time and if there is something in legislation that ought not to be in it it is extremely difficult to get that put right. Therefore, I am at once pleading for attention from those Senators who feel able to give it, and I am warning those who feel they are going to be bored by the whole thing that I may be going on for quite a little while.
I would like to take this exactly as the Parliamentary Secretary would like it to be taken. I have a lot of points on some of the sections and if the Parliamentary Secretary feels that she has heard enough so far from me on section 1 and indicates by a nod I shall sit down and get up again to make the other points. Sometimes it is hard on one who has to deal with points to get the whole lot of them thrown at one, so I do not want to do that. First of all, I may be wrong in everything I say, but it seems we are at once getting a warning of the dangers of our situation when we find —and this is relevant to section 1— Acts referred to on the outside of the Bill. You find here six Acts.
In section 1 we find the Acts are described as meaning the Merchandise Marks Acts, 1887 to 1970. If you take a little time to look into it you will find that there is indeed an Act not referred to which is pertinent to the consideration by the Seanad of what it is now enacting and which is part of the Merchandise Marks Acts, 1887 to 1970, that being the Act of 1970 which is not on the outside.
I missed the Second Reading debate and I must avoid making a Second Reading speech which I shall adroitly do. It seems a pity that the parliamentary draftsman was daunted by the task of trying to produce for the consumption of those who have to consume legislation a clear designation and description of the law relative to consumer information. It would have been difficult but not impossible to extract from the Merchandise Marks Act, 1887 what was pertinent to it and putting it into this legislation but at least consumers could find out what their rights were. Now there is the greatest difficulty in finding out what their rights were because we have to go back to the Merchandise Marks Act, 1887, take a truncated piece of it and, as I did with scissors and back-up paper, paste together the truncated remains of the Merchandise Marks Act, 1887 which itself had to be then amended in ink, and add to it part of this Bill to discover what is the principal offence created by this Bill.
There are two offences. One is the offence of applying a false description to goods or procuring that application. The other is selling, which includes exposure for sale or possession for sale, of goods falsely described. They are two separate offences but we do not find that in this legislation. My first point is in regard to the 1970 Act. In aid of the Parliamentary Secretary I am making these points at this stage so that when we come to the later sections perhaps it might be possible to give some indication of what the ministerial attitude is to the matter.
The 1970 Merchandise Marks Act dealt with containers and section 2 provided for ministerial orders with regard to containers. Subsection (5) provided that the notice displayed on the container should not be so displayed as to convey false or misleading information with regard to the quantity of the contents. I do not know whether that section is being amended in any way by the section dealing with false descriptions or trade descriptions.
With regard to the question of those powers of authorised officers contained in section 4 of the 1970 Act, are they reconcilable with the powers of the authorised officers under this legislation? There is provision for offences under section 5 of the 1970 Act and descriptions of penalties. Incidentally, the penalty is very greatly in excess of the penalty provided seven years later with regard to offences under this legislation because the penalty mentioned there is £2,000. Is the provision which deals with what seems to be a breach of an order with regard to the description of what is in a container to exist side by side with the general law in regard to trade descriptions which is to be contained in this legislation? How are the two to be reconciled and why are they not reconciled?
There is provision also in the 1970 Act for a particular kind of defence which we are getting rid of by this Bill as a possible defence under the 1887 Act. I would like to know how this matter was considered and how it is proposed to deal with it. It seems to be made to have two different types of defences and penalties for proceedings which are analogous if not the same. They all relate to the same sort of matter, which is trading. Although we are calling this a Consumer Information Bill it is, in fact, a trade description Bill. People buying machines will be entitled to the benefit of this legislation. The State will be as alert to protect them as it will the ultimate customer. It is consumer information for the palates of consumers but at all stages of the chain from the manufacturer all the way along the line down to the consumer with regard to whoever is paying value-added tax it is possible that a crime will be committed against him. There are similar difficulties with regard to the 1931 Act and the thing that interested me there was the provision with regard to the prosecutor. There is a section in this Bill which we will come to later—we can talk less hurriedly about it when we get to the section—with regard to who is to prosecute.
As far as I know the Merchandise Marks Act, 1931, is still the law of the land. I know there was a big change in 1932 but I do not think the Merchandise Marks Act of 1931 went in 1932; in fact it did not, it is still there which is encouraging for us all in 1977. Maybe it is not encouraging to find that people are forgetting its existence when they are drafting Bills in 1977; it seems to me they are, perhaps they are not, perhaps I am wrong in this. There is a provision for prosecution by the Minister and various authorised persons. The Minister for Agriculture pops up in the Merchandise Marks Act, 1931, unless he surrendered his power in some disgraceful episode of which we have not been informed. In the Merchandise Marks Act of 1931 under section 31 he may undertake as prosecutor the prosecution of any offence —now, do not think that I am talking rubbish—under the Principal Act. What is the Principal Act? It is the very one being talked about here today. The Principal Act is the Merchandise Marks Act of 1887. It was in 1931 and it is in 1977 and it looks like being in 1987 because it is continuing as the Principal Act.
At any rate, the Minister for Agriculture may undertake the prosecution of any offence under the Principal Act or any offence under this legislation in cases which appear to him to relate to agricultural produce or to the produce of any other rural industries and which affect the general interests of the country or a section of the community or of a trade or an industry. All I want to know is, what has happened to him? How is he provided for in this particular Bill because provided for he ought to be. If we are going to take power from him let us do it formally. If we are going to leave it with him, let us note it and justify the reasons for doing so.
I should like to make a few other points. Should it be the Minister for Industry, Commerce and Energy? Senator Keating will leap out of the torpor which I have been inducing in him at any suggestion that it should not be the Minister for Industry, Commerce and Energy. But he is the Minister who, after all, is most interested in the development of industry, in the stimulation of production, in the accretion to gross value or whatever happens to be the current word at any given moment. He is most interested in increasing turnover. He is most interested in people selling to consumers by any devices that they can. As Minister for Industry, Commerce and Enregy he is interested in the business of selling and getting goods produced, processed, reconditioned, repaired and so on and he is interested in exports but his function as such must mean that he is less than interested in the consumer, particularly when we get to something like exports. How interested is he in the foreign consumer? The UK are frightfully clear about this. They have a Trade Descriptions Act which visibly distinguishes in a more gross manner than they normally do the foreigner from the Briton. When you are selling things abroad you do not have to comply with the Trade Descriptions Act. In Britain if you are selling to foreigners the Trade Descriptions Act says you are O.K., as I understand the British law.
For the moment I just want to concentrate attention on this question of whether the Minister for Industry, Commerce and Energy is or ought to be the Minister to deal with consumer affairs. After all, in this generality of his function he is not merely interested in manufacturing, employment and so on but specifically connected with a whole lot of State enterprises and he is involved in the supervision indirectly of a lot of equity stakes. How can he be concerned to bring a prosecution to lead to jail some of his nominees on some State board who have been found guilty of offences under this Act?
I hope the Parliamentary Secretary will not think it discourteous of me that I have to argue that in my view the Department of which she is Parliamentary Secretary ought not to be the Department concerned with looking after consumer affairs, or at least concerned with the business of deciding whether people are to be prosecuted. That, at any rate, I can see is a matter for debate and it should be a debate between us all without regard to any allegiances we may have. It is a question I raise for consideration.
The question of goods as including land has been dealt with by my colleague, Senator Molony. Goods include various things but there is missing a definition of what a ship is. Do we include a ship? Is there some doubt about a ship being a chattel? I could not push a ship if it were of any size whatever but that is hardly the test. The united Seanad would not be able to push theQueen Mary. What is the test? The passing by delivery? You do not pass a ship by delivery. Is this the reason we are including it? We are including it as something that passes by some document of title. Then we include aircraft. We have not gone into the law of aircraft but probably there is another piece of paper to pass the title to that. Land would not leap to your mind if told your wife was going to buy some goods this afternoon. If she came back having bought a mountainside it would definitely be a surprise if she had not included it on the shopping list. When you get to including things you are in difficulty because of the possibility of excluding things. When we are including ships are we excluding boats? Are we excluding shipping vessels or any kind of old thing you can push out to sea or along a river bank? What about the oil rig? That is not very pushable. I do not know how you acquire title to it. I know how you dispose of pieces of paper that you once thought might give you title to it. The business of inclusion raises a problem. Why vehicles? I do not think you need include vehicles. I know they are included in other legislation and that may be the reason.
Accommodation is limited to living accommodation and I should like to know why. Is this because it is a crime to want to narrow the number of things? What about an office? I recently discovered—because I only recently read it—that the law relative to vendors and purchasers and lessors and lessees and the civil liability situation with regard to houses and land of any kind is extraordinarily complex and stays starkly within thecaveat emptor provision. I know we are not dealing with civil law here. If you get a false description of accommodation, if it is something you do not see, if the whole place is going to fall down and you do not discover that until you fall or until it falls five years later, the false description is there and it is a criminal offence. Surely it should be a criminal offence if somebody builds a hospital describing it to be in accordance with certain specifications when it does not live up to those specifications.
I had a situation where my daughter, fortunately, had left the room when the ceiling fell in—I subsequently sold the house for a considerable sum of money but I had repaired the ceiling, I hasten to inform the House, and my daughter is still alive and intact—at least she was when I left for the Seanad earlier today. I inquired into my rights at that stage because I thought she might have remained in the room and the ceiling might have fallen on her and so on. I found I had no civil rights and, what is more, the darned builder had put in plans saying that the lath, or whatever the damned thing is they shove across the top of the ceiling, was going to be two inches and it was only one inch. That was living accommodation and, under this legislation—subject to suitable amendment being made later—we would have been able to get him.