Consumer Information Bill, 1976: Committee Stage.

SECTION 1.

I move amendment No. 1:

In page 2, subsection 1, line 20, after "includes" to insert "houses,".

I tabled this amendment because I was not sure of the position in law and I have now satisfied myself that houses as such are included. I might say that my difficulty arose because I had not looked at the Interpretation Act, but now having looked at it I think I should have tabled a different amendment. I am not certain that flats, for example, are included and I just raise this point. I have not looked at it in any great detail or depth but I raise the point so that the Parliamentary Secretary might take a look at it and perhaps we could discuss it on Report Stage if we thought it appropriate.

The Senator raised the point if flats were included under the Interpretation Act and, in fact, they are. We ascertained this point from the Attorney General's office.

With respect, I am not absolutely satisfied that they are. Our Interpretation Act differs quite distinctly from the Interpretation Act applicable in the North. I realise it is not appropriate perhaps to go into this at this time but flats are not specifically mentioned in the Interpretation Act. The North of Ireland Interpretation Act includes in the definition of "lands", "houses or other buildings or structures whatsoever", something which is not included in our Interpretation Act. I do not want to make an issue of this at this stage but I would like the opportunity to look into it again. As I say, flats are not specifically included in the Interpretation Act and I would have some doubts that they are included in this Bill. With the consent of the House I will withdraw my amendment.

I had intended to ask, as I still do, for all Stages of the Bill tonight if that were possible or if not tonight then tomorrow morning. At the time when we asked for legal advice from the Attorney General's office we discovered that the term "land" under the Interpretation Act includes houses, tenements, messuages and they would, in fact, include flats. These points were specifically put to the Attorney General's office and we have been assured that this is the position.

In relation to that I would accept the opinion of the Attorney General's office.

Amendment, by leave, withdrawn.
Question proposed: "That section 1 stand part of the Bill."

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.

If it were a ship it would be a different matter.

What would have been the difference?

I do not know, but there seems to be a suggestion that there would be a vast difference.

Not on this particular point. Of course, there could be accommodation on a ship. That is a very interesting point. I will leave this to Senator Martin of the National University of Ireland. This should be accommodation for any purpose and whatever the purpose the accommodation is offered it should be properly described for that purpose.

Section 1 (2) states :

...a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast shall be deemed to be a trade description applied or statement made in the course of a trade, business or profession...

I tremble at my suggesting for a moment that, assuming somebody was in business in another type of activity, if a record, for example, would be——

The Senator is on section 2?

I am on subsection (2).

The Senator is on section 2.

I am commenting on section 1 (2).

I thought the Senator was at the top of the next page.

I moved on to subsection (2). The words used there do not necessarily include a record or cassette or one of the type of things which a bright boy might use to advertise. It might come as a total surprise to some in this House that anybody would think of such a thing, but it has been done.

There are two final points on this section. It is right that we should say that the change made here represents a significant extension of the criminal law in the general proposals. With regard to subsection (3)—a person exposing goods for supply or having goods in his possession for supply— the word "supply" is much wider than "for sale". It is useful to draw attention to the fact that this definition may have curious consequences on those few occasions when we use the word "supply" rather than "sale". We make a sudden shift round in the middle of the Bill from selling things to supplying them. Of course, one can have things for supply.

We are talking about a criminal offence where the proof must be considerable. For example, in Britain when they got a bread vanman contravening the trades descriptions under the old Acts, the authorities were unable to prove he had supplied bread already, because he had not goods for sale in the van; he only had them for supply. He was not capable of being convicted at that stage of British law, when the offence was for having them in his possession or exposure for sale rather than for supply.

I have one suggestion for consideration by the Parliamentary Secretary and that is that the whole section might start with "For the purposes of the Acts and this Act" and so on. The words are used in subsection (2) but not in subsection (1) for some reason that is not altogether clear to me.

I would like to thank Senator FitzGerald for not making a Second Stage speech on section 1. He spoke about the list of Acts referred to in the Bill. This is a factual list of the Acts covered in the various sections. "The Acts" means the Merchandise Marks Acts from 1887 to 1970 but the others are included in various sections in the Bill, and we will be coming to them, no doubt, during Committee Stage.

The inclusion of the 1970 Act was necessary because powers were conferred on officers under that Act which will still remain for the old descriptions and we have added further features of descriptions. The Senator will appreciate that. Included under section 17, to which the Senator referred, are the penalties which will now be in force for all the Acts. He was worried in case nominees of the Minister happened to be prosecuted by the same Minister. I am sure Senator Keating would agree that any nominees, either of the present Minister, Deputy O'Malley, or of his would not have to be prosecuted by the Minister, and we would hope that the situation would remain the same.

Senator FitzGerald went on to talk about accommodation and why it should mean living accommodation. We try in this legislation to include private accommodation as opposed to, say, factory accommodation. Private accommodation offered in newspaper advertisements would be described in glowing terms. It would be proper that it should live up to the description given. If I understood the Senator correctly he spoke about living accommodation which had recently collapsed or fallen. I was wondering if it was the accommodation recently acquired in Mount Street.

I did not have anything to do with the house that collapsed in Mount Street, nor would I ever have had.

(Interruptions.)

The right of the Minister for Agriculture to prosecute under the 1931 Act is not abrogated by this Bill. The Senator brought up the point as to whether the Minister for Industry, Commerce and Energy is the most suitable person to have responsibility for consumer affairs. I must deal with the situation as I find it and that is as it is at the moment. Of course, it is a matter for the Taoiseach of the day and the Government to say who should be responsible for consumer affairs.

The Senator asked why vehicles should be included. It is natural that we would, as much as possible, catch those who sell cars by advertisement or by describing them, because very often when we go to buy they are not as described in the advertisement. We include in accommodation, hotel rooms or any other accommodation, as opposed to a factory.

Other points raised relate to different sections of the Bill. If we discussed them at length on the relevant sections, the debate would be more organised. Is the Senator agreeable?

Question put and agreed to.
SECTION 2.
Government amendment No. 2:
In page 3, subsection (1), lines 31 and 32, to delete paragraph (k) and to substitute the following paragraph:
"(k) as to the contents of books or as to their authors, as to the contents of cinematograph films (within the meaning of the Performers Protection Act, 1968) or as to their producers or as to the contents of recordings (within the meaning of the Performers Protection Act, 1968) or as to the performers on such recordings, or".

This amendment is designed to improve the effectiveness of the provision by widening its scope to cover recordings and performers. I may add that the amendment is similar to that of Senator Molony. It is alleged that false or misleading descriptions arise regarding the identity of performers on sound recordings. This would not be embraced by the provision in its present form but will be covered if the amendment is made. The effect of this amendment will be to protect purchasers of recordings from deception. It is not intended as a safeguard for the protection of the commercial property or the copyright of the production itself. As it is similar to Senator Molony's amendment I feel it will be accepted.

I have no amendment similar to amendment No. 2.

Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."

On this section I have a number of points, perhaps the most important one is that section 2 does not seem to deal with parts of goods. It refers to goods only and not to any single part of goods which may be capable of trade descriptions as well as goods generally. The second point is that the trade description here would have to include the reference in the Merchandise Marks Act, 1911, which provides that a customs entry is a trade description, or in some way reconciles it. As section 2 of the 1970 Act provides for an order with regard to the contents of a container and makes provision for a trade description, the use of the word "means" does not include "means any description, statement or other indication".

What is the effect of section 7 of the Principal Act with regard to watches? There is a special provision with regard to the description of watches in the Merchandise Marks Act, 1887. There was a provision in the Principal Act that the provision of the Act as to false descriptions is not to apply in certain cases where it is lawfully and generally applied to goods of a particular class. I would like to know if this has been considered. I think there is a clear mistake in the drafting. It is a small one and easy to correct. Section 2 (2) (c), line 54, states "false in a material respect". I think this should be "false in a material degree". I may be wrong but that seems wrong to me.

With regard to the provisions for the temporary importation of goods, how is it proposed to deal with the provisions of goods which are consigned under the Merchandise Marks Act, 1931, to persons outside the State, whether there are analogous provisions to the UK provisions which exclude the Trade Descriptions Acts from exports in effect?

My final point is a question rather than a comment. What if you got something like cheddar cheese? Section 2 (1) says:

..."trade description" means any description, statement or other indication, direct or indirect...

(b) as to the place or country in which any goods were manufactured, produced, processed, reconditioned, repaired, packed or prepared for sale, or

Cheddar cheese is produced in many parts of the world besides Cheddar. Bath buns are cooked in other places than Bath. Are you falsely describing cheddar cheese because it was not manufactured in the land where cheddar cheese originally came from?

The republic of Cheddar.

If you could address the Chair with the power of your intelligence.

My remarks were directed to the Chair.

You are totally disorderly and I rule in my private capacity but I am interested to know how that problem is resolved.

There is one point I would like to raise but before I do so I would like to suggest to Senator FitzGerald that his amendment to section 2 (2) (c) would not be very satisfactory. As I understand it, he would like to have things being "false in a material degree". That suggests that a certain degree of falsity would be all right, and only at a certain point would you say it was too false. Therefore, we better leave it as it is because it implies that if it is false on some matter which is material, it comes under the Act, and I certainly would not like to see the word "degree" inserted.

I would like to make an inquiry about section 2 (1) (k) which reads:

...as to the contents of books or films or as to their authors or producers,

Every one knows that in many cases books have false statements about their authors. Many authors write under a pseudonym. In other cases we have celebrated but somewhat illiterate football stars who write articles, and we all know these are ghosted by anonymous individuals. In theory it is the football star who writes them. Are these to be brought holus bolus under the Act for false statements? It seems to be a rather drastic breach of prevailing rules of authorship. I suggest that this should be looked at because otherwise one might have unforeseen results.

I would like to support my friend, Senator FitzGerald, in his remarks about cheese. A better known place for cheese production is Cheshire. Cheddar is known and celebrated as an area where cheese is produced. Suppose you describe something as Irish Cheshire or Irish Camembert or Irish Danish Blue. Senator FitzGerald has raised a genuine and important point and Senator Yeats has an important point also. Are we going to produce a Bill which, if a certain very pedantic lawyer got hold of it he could prosecute for all kinds of things?

For instance, the great poet Cecil Day Lewis used to write thrillers under another name. Would he be prosecuted for not signing himself Cecil Day Lewis? He wanted to separate two sides of his personality. Would he be misdescribing himself and be open to prosecution? It is only a small point but I think the point about Cheddar and Cheshire cheeses is probably relevant here. You could say that a sensible lawyer looking at this would say, yes, it is designed to protect us against fraud and fraud exists in all kinds of ways, but would an innocent spoof be open to prosecution? For instance, what would happen if somebody said he had discovered a 19th century Irish poet who never existed and wrote the poet's works and commentaries on them, learned foot-notes, invented a biography for him, and published his article for the amusement of certain people? It is something that has not been unknown.

There is an English poet called Crabtree who does not exist and there are lectures given on him every year. Crabtree dinners are eaten in his honour. He never existed but all his poems have been written fraudulently by a number of bored academics who could not think of anything better to do with their time. Is this Bill not a bit too precise and pedantic? If it were scrupulously interpreted, could it not put a lot of innocently mischievous people in trouble? Surely that cannot be the purpose of a Bill which is primarily there to protect the public against fraud.

Following what Senator FitzGerald said about cheddar there is one word which could cause a lot of trouble and that is the word "cream". There is Ponds cream, Bristol Cream, I am sure Senator Lambert has Lincoln cream and cream crackers. What is the position going to be as to what the word "cream" means? Is it dairy cream foodstuffs?

Is that what Rowntrees had in mind when they said "Is it a biscuit or a bar"? They wanted to cover themselves on both sides.

I wanted to intervene in exactly the opposite sense to Senator Martin. If manufacturers and suppliers are in danger through pedantic interpretation by ingenious lawyers, let us consider the situation which we know to be true and which this legislation was developed to end —that the poor, unsuspecting and exceedingly numerous public have been ripped off ruthlessly decade after decade. The existing legislation, named and unnamed, has not been invoked in practice. Lawyers deploy their ingenuity in other directions, mostly in the services of those who could afford to pay them who were in fact manufacturers.

One can think of instances where a pedantic lawyer could act in an obscurantist and difficult way under any such legislation. But the reality, when you come to frame it is that there is a difficulty for every solution. If we do not legislate in this sort of way, in a reasonably straightforward sense, assuring the reason of the lawyers who interpret it, then we will not get any protection for the public at all. The need of the public, in balance in this context, in my view far outweighs the need of the manufacturers and suppliers. They have been winning the battle. When for a few decades the public have won the battle and have vexatiously taken some damages from suppliers in the wrong, it may conceivably balance for all the decades when the manufacturers and suppliers ripped off the public in the wrong and the public had no defence. Until I see that happening, I believe that if we are going to—I do not want to use the word too perjoratively—nit-pick about this, we will find all legislation on this issue damn nearly impossible and we will find that we are denying the public the protection all of us as public representatives know to be long overdue.

Progress reported; Committee to sit again.
The Seanad adjourned at 8.30 p.m. until 2.30 p.m. on Wednesday, 7th December, 1977.