The section of the Principal Act which this section proposes to amend is the section which relates to the definition of trade descriptions and the definition of what are false trade descriptions. I do not think it is possible to consider this section, or indeed the sections which succeed it, without being clear as to the precise nature of the amendments we are making in the Principal Act, the fundamental preceding section of the Principal Act which defines the offences. This section of the Principal Act, defines trade descriptions and false trade descriptions. We are proposing in a later section of this Bill to amend the section preceding this section in the Principal Act which defines the offen-offences. The Bill proposes a rather important change and it is fair to say that the memorandum accompanying the Bill has drawn the attention of Members of the House to the nature of that change.
There are two offences under the Principal Act, an Act which, incidentally, although we are amending it under the title of a Consumer Information Bill, applies to all transactions between traders as well as transactions between traders and consumers. Indeed the Bill can catch buyers as well as sellers for criminal offences. Under the Act which we are amending and even the Act after we have amended it as proposed, there are two separate offences. The first is the application to goods of a false description. That is a separate offence and it is important to note that the memorandum accompanying the Bill draws our attention to the fact that the law as it stands, before amendment, makes the application of a false trade description by any person an offence whether that is in the course of trade, business profession or not—the application of a false trade description by anybody, whether he is in business or not is an offence.
The second offence is in relation to the sale of goods to which a false trade description has been applied, whether by the person who is selling them or not, and that offence can be committed by the buyer of these goods as well as by the person who is selling them. That first change, which is to be made in a later section of the Bill, is that people who applied false trade descriptions to goods, who are not in business at the moment, will not be liable any longer—they are being taken off the hook in relation to liability; they will be liable henceforth only if they are in trade, business or a profession.
With regard to the changes proposed in this section—I am going on a little bit about this because it is the most important part of the debate— we must try to understand clearly what we are proposing. Quite important changes are being made in the definition of "false trade description". First of all, under the Act which we are proposing to amend, under the law which exists, the description must be false and if it is not false there is no offence.
The Bill proposes to extend the meaning of a false trade description to include a misleading trade description which need not be false. As an example, somebody advertises a holiday home as being near the sea, suitable for children, but when you actually reach the place you find a 100-foot sheer cliff—and that you would have to travel ten miles before your children could play on the seashore. The statement was true, it was near the sea, but it was misleading. It would be under this Bill as amended a false trade description. "False" and "misleading" are now caught and this is desirable.
The Bill proposes to go further to deal with indications which are false or misleading, that is to say, an indication which may not be a description at all of anything: for example, a speedometer which has been put into a car to give a false or misleading indication of the usage of the car. That indication, which is false or misleading as to the car and its use, is now made a false trade description and as such will be caught under the Act. Another indication would be to make an alteration in a car that would indicate the car was fit for the purpose for which it was being bought—that it had strength. This is an indication which could be conveyed by concealing work which had been done on the car to convey a misleading indication of constructional strength. From the point of view of the seller, he can be liable even if he did not apply the false trade description. Even if he did not give a false indication or did not know about it, he is liable as having committed an offence under this Bill. The liability does not involve any guilty knowledge. In regard to liability under section 2 of the Principal Act the referable definitions of which are contained in another section, it does not matter how vicariously the offence may have been. It may have been carried out by a partner. Indeed a partner was convicted of an offence under the Principal Act though he did not know anything about what his partner was doing. He did not know at all that there was a false description being made by his partner, or that his partner was selling something to which a false description was being applied, yet he was vicariously liable.
There is another case where somebody in the employment of another was directed by his employer not to do the very thing he did and his employer was liable. It was an absolute liability. There was no question ofmens rea and guilty knowledge but because he had sold something to which a false trade description had been applied he was found guilty of the offence and was given a criminal record. We can on a later section deal with the defences to that offence, but the point is that if there is a breach of an absolute prohibition a charge will lie to which there may or may not be a defence.
The indication must be of material degree. When I was speaking earlier on this section. I made the point that in one section of the Bill the wrong term is used—"material respect" is used where it should be "material degree". There is a difference between the two, and it is necessary to say that virtually we are amending a British Act. This is not at all unusual when we are dealing with law reform—we have similar laws to theirs. It is in many ways convenient because they have such a considerably advanced commercial system and many more cases go to their courts. We get the benefit of their judicial interpretation of words. The British changed the term "material respect" to "material degree" because they found it necessary to do so to ensure that the materiality of the matter was such as to induce a purchase. It must not only be misleading in a "material respect" but it must possess such a degree of materiality that it is capable of inducing a purchase by the person to whom the goods are offered.
In following the British Act it is worth while that we should know at this stage that the British Act was found to be unworkable, antique, abstruse and unsuitable, and in Britain they tore the whole thing up, and introduced the 1968 Trade Descriptions Act, the largest part of which is contained in this Bill.
It is not a redefinition of the first two or three sections of the Principal Act. I will argue that the Bill should not go forth from the Houses of the Oireachtas in its present form as a Consumer Information Bill. It is in itself not in a condition to be consumed, not capable of being understood easily by the people who have to consume it and understand what their rights or duties will be. Despite the difficulties of draftmanship, we have to face up to a total amendment of the first five sections of the Principal Act. If we had done that we need not have changed very much of the language in it. Some explanations would have been necessary for some of the language, but we need not have changed very much of what we have in the Act to have made the Bill a much more easily understood document which would be of benefit to consumers.
There are rich consumers as well as poor consumers, and there are poor traders as well as rich traders and a Bill such as this is in their interest. There are all sorts and conditions. A man is a producer in one part of his life and a consumer in another part. This affects both parts. We realise that we are here engaged in enacting new legislation with regard to trade description of goods. Under the Act which we are amending there is no provision with regard to the description of services. We had a definition of goods which I criticised on the first section of the Bill and it is sufficient to say that the definition we have got takes in property and the sale of houses. I will argue later that this is right and that there should be special provision with regard to the trade description of that type of goods. The question arises as to whether an offence which involves an absolute prohibition without guilty knowledge should arise in the case of the sale of such "goods" as property or as to whether some guilty knowledge should arise in the case of the sale of such "goods". The question arises as to whether there should be some guilty knowledge involved in somebody's liability if he is selling a house or any kind of property. Let us be clear about it with regard to houses, if they are goods they are not living accommodation merely. Every type of property is involved, mixed accommodation, home income type houses, sales of factories and offices, sales of land—they are all involved and defined as goods under this Bill, and rightly, for the reasons I have given. We have chosen to take the Merchandise Marks Act, 1887, the UK Act, and looked at the amendments the British made in it in 1926 and 1953—these amendments did not apply to us. We have looked at the Moloney Committee Report set up in 1962 which led to the Trade Descriptions Act, 1968, amended in 1972. We have had a look at all of these and we have also studied the consultative document which was issued by the person whose business it is to see that this kind of code is enforced in England.
We have had under consideration and taken some of his suggestions in what we have said on this section and in other sections of this Bill. We have also taken into account the further reports from the Director General of Trading, which he made when, having issued that consultative document, people came back and made their observations on the various proposals. There are differences of views here and there. We, in our legislation, have come down on one side or another in relation to these matters.
It is worth noting that in doing this thing, which I think is sensible—the House should at least consider the matter—we have moved in the British fashion, which is quite contrary to what is common on the Continent. The more common thing on the Continent is to have a more general law with regard to false trade descriptions without the false trade description receiving the type of listing which we have got in this section. This is the type of harmonisation which we might expect to see the EEC engaged in. I am quite content to take the situation that is offered to us by the Government on this and to work on that basis, taking note that we are doing it differently from the way the Continent of Europe and the other EEC Members are doing it. We are doing it the British way, but in doing it that way we are no doubt taking advantage of a legal system we understand and giving our judges the benefit of the persuasions available to them in the judgments of United Kingdom colleagues.
I have already referred to one phrase which appears in subsection (2) (c), "in a material respect". I think that should be "in a material degree".
I want now to refer to another matter which has been pressed for by various people in Britain. It is not in any of the British Acts yet, it is new to these islands. A number of these sections are new to these islands but I did not find any of them that did not appear in some British document. That is understandable. They are commenting on a code which we are proposing to operate. The matter I am worried about is the phrase
the contents of books or films or as to their authors, as to the contents of cinematograph films, etc.
For example a commentator on that proposal, and he was a person who recommended that there should be a change of this kind in Britain, said this would put an end to ghosted articles. That is a very interesting position and it seems to arise with regard to the position of people who lend their names to articles other people write. Apparently both would be guilty of a criminal offence under this. The commentator also suggested that, unless it was carefully drafted, it might catch the lurid covers of paperbacks, very often showing a Jane Austen in a situation that Jane Austen herself might well have imagined but did not choose to put on the outside of a book—a misleading indicator of the contents of the book. What is the position if books are ghosted for some British Prime Minister and serialised in an Irish paper? Is the paper which serialises them committing an offence if it is proved that they were in fact ghosted?
As we know with regard to new editions of old books, there is this business of abridging. For example, what is the canon applicable to the Bible in regard to a dispute between the sects as to what is the proper canon? There seems to be great problems with regard to new editions, republications and abridgments. What have people to do to prevent themselves from committing a crime? Take note of the fact that the false description may be applied by somebody else, but if you are the seller you will be committing an offence. What is the position then of Irish booksellers? Have they to discover whether all the books were ghosted, whether this is the complete edition, whether there is any wrong description involved? I have the greatest doubt about the desirability of following that particular suggestion. With regard to subsection (2) (h):
as to any physical characteristic of any goods not referred to in the preceding paragraphs of this definition,
I wonder is that positioned in the right way, because subsection (2) (b) relates to the place or country in which any goods were manufactured. Subsection (2) (d) refers to the person by whom and the time at which any goods were manufactured, produced, processed and so on, and subsection (2) (f) refers to any goods being the subject of an existing patent, privilege or copyright. These are not physical characteristics, so it seems that in positioning this is wrong. It should follow only when you have listed all the physical characteristics first. A welcome and completely new paragraph (j) deals with:
the identity of the supplier or distributor, or the standing commercial importance, competence or capabilities....
Why not the identity of the manufacturer or producer as well as the identity of the supplier or distributor? There is something which is missing and seems to be rather important when you are dealing with secondhand things like cars. Subsection (2) (1) refers to any history of any goods not referred to in the preceding paragraphs, including their previous ownership or use. The history of the "use" could be as important as the ownership. I think the language of all these paragraphs which list the characteristics amounting to a trade description should be carefullly looked at.
I come to the point with regard to the amendment of section 3 (1) which we are proposing in this. There seems to me to be a curious position, and I would like the Seanad's view on it. We have defined goods in subsection (1) to include ships, vehicles and aircraft, land, things attached to land and growing crops but we have left section 3 of the Principal Act unamended with another definition of goods. In the Principal Act the expression "goods" means anything which is the subject of trade, manufacture or merchandise. It is an odd Bill which contains two separate differing definitions of the same word for all the purposes of the Act. Which of the two should we have? It seems to me that this is the type of problem which can only be solved by having a complete redraft of the provisions of the Principal Act. As it stands, we have one definition in section 1 and we have left another definition, through our failure to amend it, in section 3 of the Principal Act. That requires improvement and change.
I would like to draw the Parliamentary Secretary's attention to the Industrial Research and Standards Act, 1961. Section 25 (8) of that Act states:
The use of a standard mark in connection with a commodity, process or practice which does not conform with the standard specification relating to such commodity, process or practice shall not be deemed to be an application of a false trade description to goods for the purposes of the Merchandise Market Acts, 1887 to 1931.
If that is intended to be left unamended, I think there should be some reference to the effect that the definition of false trade description does not affect the provisions of that. If it is intended to be amended, we should know about it. I suggest that there should be a provision in this for not treating as a false trade description something which is an approval mark under an EEC directive. There should be some general provision in this Bill which will allow these directives to be incorporated into this area in a clear way so that when we are reading this code we will know where to find the matter. That is all I have to say at this stage.