Seanad Éireann debate -
Wednesday, 20 Feb 1980

Vol. 93 No. 10

Sale of Goods and Supply of Services Bill, 1978: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Jago

I also would like to welcome this Bill in that it updates legislation that has fallen behind in our ever-changing society. It brings into the field the area of services and hire-purchase: it deals with unsolicited sales and directory entries. But also there is one very important area and that is the exclusion clauses. However, in the absence of legislation in this field, to a certain extent the public over the years have taken remedies into their own hands. How many times have we been given, if we are buying a car or a washing machine, a form to sign and when it is returned we will be given a guarantee? How many of us have completely ignored signing the forms but still we have had the warranty on the goods that we bought? Also, the public have found that in many of these cases publicity has been the answer because the one thing a producer or a retailer-distributor fears is adverse publicity and, in fact, certain people have found the publicity on the "Gay Byrne Hour" has been very effective in the absence of legislation. I welcome the fact that we will now have legislation governing these exclusion clauses. There is one fear that I have, and we can keep this in mind on Committee Stage, and that is that if the penalties are made too severe in certain cases this could react on the consumer in that the producer or the distributor may, finding the penalties severe, stop supply or it could mean increased cost for the goods in covering himself in such cases.

There is one section that I would particularly like to refer to—it has been referred to already by some Senators—and that is section 13, I feel that the motor traders have acted very responsibly in their approach to this in that they have sent their views to the Members of the Oireachtas. Latterly, we have had a habit of people making protests and doing things the wrong way and because I received, as well as other Senators, the views of the motor traders I have looked into this section far more deeply than probably I would have otherwise. I have already had correspondence with the former Minister, that is the Minister for the Gaeltacht at present, and also with the Minister of State who is here today, on this subject. The point I would like to make and which I have made already is that in a Bill which is for consumer protection subsection (2) appears to be sufficient in that you have already implied that a vehicle being sold is being sold in a safe condition. I do not like the aspect of bringing the criminal element into civil legislation. Among other things it could develop and at present if a person puts in a car for general service to a reputable garage he gets a certificate back as to what has been examined and what has been dealt with, in other words a certificate to say that these points are now right. I would hate to think that at any future date there would be a fear that we would not be able to say that we were getting a genuine report without the costs going up on the garage to give that report.

If, also, safety on the road is the aim in this then, to a certain extent, it is not doing the job 100 per cent because only those cars sold by the dealers will get a certificate and the cars sold privately will not get a certificate. That is not making any advance towards safety in a certain number of the cars sold. If safety is the aim I feel it should be under different legislation—road traffic legislation which will cover all cars—because today driving on the road shows that the more dangerous aspects are things like the focussing of lights which if one is driving at night can be, to say the least of it, pretty bad and dangerous.

It could also be introduced in relation to the insurance of cars, that cars over a certain age would have to have a certificate. I fear that there could be a case of discrimination in this. In other words, we have one section of the community selling who have to supply a certificate and another section selling who have not and therefore there is discrimination. In view of certain proceedings in some of our courts one could not tell the result of an action brought under such a heading. Recently, we had the case of the working wife. Equally a case of discrimination could have been brought by the working husband because he did not get a working allowance so you could not tell what cases could be put and nobody could forecast the result.

On this obligatory certificate, if the time comes when I want to trade in my car or buy a new car I will probably find that I will have a better chance of selling it now privately because the dealer would probably protect himself against the cost of a certificate and therefore he would give me less. That means on this safety procedure you are putting more cards on to the side that will not have certificates than on the side that has. The Minister should have another look at this section and possibly amend some of it.

Mrs. Robinson

I welcome the Bill in general terms because it will increase the protection of the consumer in Ireland. Before looking at what it will do and before criticising some aspects of it I would like to preface my remarks by the general comment which was echoed by other Senators who spoke, that it is a pity that Senators approach a Bill of this sort by a general debate on the floor of the House on the principles of it. If this was a draft directive on the sale of goods and supply of services, the way in which the Oireachtas would examine it is infinitely better and preferable and more authoritative than the kind of debate we can have here this afternoon and the kind of debate that took place recently in the other House, because we would sit in Committee and have the benefit not only of the views of the Government through the kind of speech which the Minister made in introducing the Bill but also we would have an opportunity for both written and oral representations from the various interests—from the consumer interests and from the sectors which are particularly affected.

As it happened Senators have received the assistance of lobbying from some of these sectors—in my view a perfectly legitimate and indeed helpful exercise of letting Senators know what the views and concerns of particular sectors are—but that is very ad hoc and random. I have received representations from the motor industry, as I know other Senators have, from the finance houses and from one or two lawyers who wanted to draw certain parts of it to my attention as a fellow lawyer but I have not had the rounded, balanced covering of interests that I would have liked. I would get that perhaps by spending a lot of time going and seeking the views of the Consumers Association and the various other bodies and groups affected. This is a reproach to the way in which we approach a Bill of this sort because it is a technical Bill.

It is an extremely important Bill and a very far reaching Bill. I do not believe, even though we may spend some time in examining it, that we are sufficiently in a position to give it the consideration which it warrants. I am disappointed that the representations that were made to have a Select Committee of this House appointed to consider the Bill were not acceptable or did not meet with any support and enthusiasm from the Government side. It is regrettable because it is going to reveal the difficulties under which Senators must operate in considering the terms of the Bill. Reference has already been made to the debate in the other House and it reveals strikingly the difficulty of Dáil Deputies trying to examine a Bill of this sort without an adequate opportunity to be briefed on the implications it has for various sectors and on the overall considerations of the Bill.

Having made those remarks about the deficiencies of this House in considering the Bill—which is part of my longstanding campaign for reform of the Oireachtas—I want to make it very clear that I extend a welcome to what I regard as a long overdue Bill. I also appreciate the fact that the Minister in introducing it made it clear that it is a Bill that has been in process for some time and the principle of which was agreed by the previous Government. When we look at the kind of representations that are being made about the effects that the Bill could have on certain sectors, it is worth reminding ourselves that it is substantially amending an Act dating from 1893, The Sale of Goods Act, 1893, and that virtually since that Act was enacted it has been possible to avoid some of the clear protections that that Act was intended to afford to consumers. Because consumers are individuals, because as a group they are not strongly represented—and they are not sufficiently strongly represented still in this country—this imbalance in the 1893 Act, this unintended development by exclusionary clauses which removed the protections of the 1893 Act has been allowed to continue right up until 1980. That is worth bearing in mind, that the interests of consumers have not been protected because they did not have an effective voice. We have been slow to follow the kind of developments that have taken place in other countries in relation to control over misrepresentations and the kind of prohibition of exclusionary clauses which this Bill will now bring into Irish law. It is worth reflecting on the lack of protection that there has been for the consumer under the existing law and how slow we have been to take account of that.

While dealing with this aspect of it, I would like to say that I do not believe that this Bill is by a long shot the end of the road in the protection of the consumer. It is necessary to give the consumer access to a reasonable and easy forum to resolve disputes. In other words, we need the small clains court so that a consumer has a ready place to go to complain or to pursue some of the legal rights which he will now have under this legislation. One of the great deterrents to the ordinary person at the moment is the comparative inaccessibility of our ordinary courts. This will not be corrected to any great extent by the civil legal aid scheme which the Government have committed themselves to introducing, because it looks as though the kind of claim which will be the most common will be excluded from that scheme. Perhaps the Minister might comment on that but it seems to me that the kind of actions most likely to arise would not be included in the Civil Legal Aid Scheme, actions for small debts, when the consumer wanted to pursue a remedy under this Bill. When we are improving the law and when we are improving the protection extended to consumers we have to follow it through and have the kind of small claims court procedure which operates in many other countries and is considered an essential part of the protection of the consumer. In principle I welcome this Bill, but I hope that it is not going to be the last word on the protection of the consumer. I hope it will be followed up by ensuring access to a small claims court when it is necessary to avail of the improved protection and remedies open to the consumer.

A great deal more should be done to ensure that adequate information is made available to the consumer. Here I appreciate that we have had the Consumer Information Act and that we have a Director of Consumer Affairs. I would hope that this will mean over the next few years that there will be a greater attempt made to ensure that the ordinary person is made more aware of what to look for, that school children are made more aware of what to look for when they become adults, in credit schemes and hire purchase schemes, what their rights are and how they can enforce them. This is an area, where despite the efforts on a voluntary basis of the Consumers Association, they have not had the resources. We are not a consumer-conscious nation and that, I believe, contributes a little bit to the very high prices and inflationary spiral that we are in. It is much easier to raise prices when you have not got an alert, conscious and resourceful public. Apart from improving the legal protection we also need, very dramatically, to increase the awareness by the consumer of his and her rights; to begin with the very young consumer, to begin with the child in school, the young adult, to ensure that they have the knowledge of their rights and they do not become inadvertent victims who might possibly have a remedy but the enforcement of that remedy is so remote from them that they just have to cut their losses and forget about it, even if technically through this Bill they would in fact have a remedy.

Having affirmed very strongly my support for the idea of getting away from the laissez faire approach of the 1893 Sale of Goods Act, with its potential for exclusionary clauses which denies the consumer many of the protections intended by that Act, and my support for the approach in this Bill of greatly improving that protection and of ruling out exclusionary clauses, I now have to say that, as a lawyer, there are a number of aspects of this Bill which would worry me and on which I would like to have an opportunity for a detailed Committee Stage debate so that we can be very clear on what the terms of the Bill mean and so that, where necessary, it will be possible to introduce amendments.

A number of the points that I would like to make in this context have been made by other Senators on both sides of the House, so, perhaps, I would indicate them at this stage. They are very substantially Committee points: they are ones on which we will have to have a very full discussion on Committee Stage. The first relates to the question of definition of the consumer. There is reference in section 3 to dealing as a consumer and there are a number of questions arising out of that, even questions arising out of the approach of not defining consumer—as has been done in the European Community directive and in the legislation of other countries. I would very much welcome some indication in the Minister's reply as to why he has chosen in this Bill not to have a precise definition of consumer but to have the provisions of section 3, which we will examine on Committee Stage.

I would also very much like to know, because it is a most important point in trying to understand this Bill, why it has excluded leasing. There are very substantial, very far reaching provisions of liability of finance houses in hire purchase agreements, but none of these legal provisions extends, if I understand the Bill, to leasing arrangements.

It is a clear fact of life that in business and in the professions a great deal of plant or equipment or office furniture, filing cabinets—anything—is being leased at the moment rather than being bought outright or bought under hire purchase arrangements. It seems to me that this Bill as it stands could have a very distorting effect. We are dealing with finance houses who presumably have a great capacity to adapt and if we impose on finance houses through hire purchase arrangements a co-liability with the seller for the condition of the goods and we give an option to the consumer either to sue the seller or the finance house which extended the credit to the consumer, then if the finance houses can provide a facility where they do not risk the same kind of liability, in other words, if they can say from now on we are not going to enter into hire purchase agreements but we will enter into leasing arrangements; surely that is the way in which they would move and they would not have the same kind of liability. It is not just a question of why did the Minister appear in this Bill not to extend the same arrangements to leasing but would this not have a completely distorting effect? It could in fact have a very harmful effect if my assessment is correct, because it could mean that it would be much harder for the consumer to get hire purchase facilities, to get credit facilities, and this could seriously hurt a consumer who would not have the cash or the capital and who needs these hire purchase facilities. So, in seeking to protect the consumer and in seeking to extend a potential liability I think that we have to be very careful either not to close off a facility that is there at the moment or have the result of a major switch from hire purchase to leasing arrangements which would escape some of the proposed safeguards of the Bill.

Another section which will obviously have to be dealt with in detail on Committee Stage is section 13 relating to the car industry. I think there has been a very substantial reference to this by other Senators in their contributions and I certainly feel that the introduction of a certificate accompanied by criminal penalties is a very different kind of provision from the other measures in this Bill. I am very much in favour of the implied condition in section 13, I think that this in itself is very much part of what the Bill intends to do; I think it should extend to the motor industry and I think that it would have favourable consequences if it did, but I do not think that the criminal certificate has any real significance. I am persuaded by the representations which have been made by the motor industry that it would be much better to introduce in a completely different context the provisions for compulsory vehicle testing and, if necessary, to accompany that by criminal penalties under the criminal law, but the approach here seems to me possibly to postpone that kind of compulsory vehicle testing and not to achieve its objective.

I have also been very impressed on this point, not so much by the formal representations made, and referred to by other Senators, by the motor industry, but by small traders both in my constituency and elsewhere in Dublin, very small men who are doing the business which they have been doing all their lives who see a very real danger. They see the very real danger that operators will get around the provisions of section 13 by advertising in the evening papers that they have a car for sale, not as motor traders, but in a so-called private capacity and avoiding all the safeguards. There will be the rogue dealers, as the small traders would call them, operating in a situation which is really created by the terms of section 13. This is something which can be discussed in great detail on the wording of section 13 on Committee Stage.

It is a matter of real importance how we strike the balance in giving the consumer more protection than the present law does, but is not creating such a concern for motor traders in their business than it either gives a field day to the existing rogue dealers or encourages others to avoid the terms of the section and to enter into private relationships for resale of secondhand cars, where there is no protection for the consumer and where none of these provisions of the section apply. I endorse what a number of other Senators have said on this point. I welcome the fact that the Minister in introducing the Bill appeared to be prepared to give consideration to the representations made by the motor industry and to the views of Senators on this point. This is a section which ought to be amended on Committee Stage.

Another section which certainly needs to be clarified and which if left as it is at the moment could have a distorting effect is section 14, creating for finance houses the same liability as that of the seller of goods and giving, apparently, the consumer who has bought on credit the option either of bringing proceedings against the seller or against the finance house. There seem to be one or two possible difficulties about that section. First, it appears to place the consumer who finances the purchase of goods on credit in a much better position than the consumer who pays cash; this is because obviously a finance house would presumably be a good mark in almost all circumstances. I do not know whether we want to deter purchases on the basis of cash in favour of almost all purchases being on the basis of credit, because you have the additional advantage there of the possibility of bringing an action against the finance house, in the circumstances. Also, in trying to achieve something which I would very much support—the protection of the consumer—there is a possible danger that if there is no limit to the liability of a finance house in those circumstances, either, as I said earlier, finance houses would be very reluctant to give hire purchase facilities and will move substantially towards leasing to avoid the provisions of the Bill, or, if they do give hire-purchase facilities, these may be on very onerous terms, in order that the finance house can secure itself against any actions that may be taken.

For example, as I read section 14 it is hard to understand the scope of the liability. If the goods in question cost a substantial amount of money and were sold in a defective condition, about which the finance house was ignorant not having examined the goods, but just providing the facility, if the financing was for only a small part of the transaction, is the finance house fully liable, or liable to the extent of the amount advanced? If fully liable—which seems to be the way section 14 reads—again, what effect would this have on hire purchase transactions? Perhaps the Minister would give some indication as to whether the provisions of section 14 if unaltered would, in the Minister's estimation, have an effect on access to hire purchase and on hire purchase rates. Does he anticipate that this would have an effect on hire purchase rates themselves? This is something which could be taken up on Committee Stage.

Another point, which may be dealt with by way of an amendment on Committee Stage, is the fact that although this Bill will make a very significant change in the area of commercial transactions and although there must be a very significant number of contracts and documents based on the existing law under which people are operating at the moment, there is not, in this Bill, any provision that it would come into effect, for example, on 1 June or 1 May, nor is there any provision—which would be an alternative way of doing it—for the Minister, by order, to say when the Bill would come into effect. This could be very disruptive of existing commercial transactions and relationships and is something which, again, could potentially cause unnecessary litigation, if I could put it that way. It is right, after a very long delay—and I have already criticised the delay—to protect the consumer and to secure more fully the protection of the consumer. It would, however, be more orderly and, indeed, less likely to give rise to either vexatious litigation or to problems in present commercial transactions, if there were to be some period after the passing of this Bill—not necessarily a long period, but some reasonable period—in order that those who are engaged, for example, either in providing hire purchase or credit facilities, or those involved in standard form contracts under existing law and which therefore, have exclusionary clauses, could bring their contracts into line with the new legislation.

I am aware, and glad, that this Bill has received a great deal of public comment. It is not that people can say that they are unaware of its existence. Yet, as many Senators have said, it is a very technical Bill. As far as lawyers are concerned, it makes a very dramatic difference in the law—in the law of contract; in the law relating to conditions and warranties; in the prohibition of exclusionary clauses, where these are standard things in standard form contracts. It would be desirable to have some gap between the passing of this Bill and its coming into operation, to ensure that the message is got home all right and that future commercial transactions reflect the law as it will be and to ensure that there is not, in the interim, a disruption of commercial transactions and some vexatious litigation which would be better avoided in the interests of everybody except the lawyers briefed in the matter. I have not stooped to the stage, as yet, of saying that all litigation is good litigation.

Those are my remarks on this Bill on Second Stage, As Senator FitzGerald, I think, and various other Senators have said, it is basically and, very importantly, a Committee Stage Bill and therefore I ask that we be given sufficient time to discuss it in this House. It is clear from contributions made by other Senators that we appreciate the significant changes which this Bill will bring about and that we are concerned to ensure that when it passes through this House it will have satisfied the various queries and will be the best possible Bill for the protection of the consumer. I ask that we be given an opportunity in this House to have the kind of Committee Stage which I believe—and which I know some other Senators believe—will be necessary in order to carry out that task. I certainly welcome, at long last, a greater legal protection of the consumer.

This Bill tries to do, in one measure, what other countries, for example, the United Kingdom—in a similar situation have done in several different Bills. In some instances we go further than British legislation and in others we do not go as far. We need to be extremely careful that the end result is the best one and the best balance for all purposes and not only genuinely increases the legal protection of the consumer but also does not have undesired potential side effects which would not be to the benefit of the consumer.

Mícheál Cranitch

Táimse ar aon tuairim leis na Seanadóirí a labhair ar an mBille seo. Fáiltim go croiúil roimh an mBille agus sílim go bhfuil an-mholadh ar fad ag dul do na daoine a ullmhaigh an Bille agus a chuir os ár gcómhair é.

This Bill is to amend and extend the provisions of the Sale of Goods Act, 1893. Certainly it does that and is all the more welcome because if we compare the date of 1893 and the date of this Bill—which is 1978—we will see that there has been a lapse of 85 years. Much has happened in those 85 years. Many business practices, some desireable, some undesirable, have come into existence since the 1893 Act was passed. I happily welcome the Bill and hope it will give every satisfaction to the public in general; they deserve it.

A number of suggestions were made to the Minister regarding various sections. I make a suggestion regarding one. It is section 12, particularly the part which reads:

In a contract for the sale of goods of a class to which this section applies there shall be an implied warranty that spare parts and an adequate after-sale service will be provided by the seller for such period and in such circumstances as are stated in an offer, description or advertisement by the seller on behalf of the manufacturer or on his own behalf.

I have had personal experience of grave disappointment in this regard, and so have many others who have spoken to me about it. The best thing would be to give an example of what I have in mind. I know of a man who some time ago went into a shop and bought an electric razor. He kept the razor very well, kept it cleaned, got it serviced and so on. The motor and everything else in the razor were working perfectly. He got one or two renewals of the main movable parts, that is, the cutters in the razor. Quite recently he went in to get a new supply of cutters and the shop assistant said that he did not seem to have the size. He kept on trying but came back to my friend, the customer, and said that he had no parts and that the machine was obsolete. An argument ensued; my friend declared that the machine could not possibly be obsolete, that it was as good then as it was when he bought it five or six years earlier or less. He got no satisfaction. His excellent razor was now useless; he could get no more spare parts for it.

It is very important when one gets a machine or instrument with moving parts that are subject to wear, that spare parts be available for such a machine for a reasonable period after the purchase is made. The question then arises—what is a reasonable period? I shall not detain the House but I hope the Minister when replying will refer to this section; I do not really understand these sections and their implications in law. Perhaps he could explain what exactly is involved in section 12(2). I am sure the public would be very happy if they knew that a firm selling an article, such as I described, would guarantee to the customers that spare parts would be available for a period of X years. The customer would then know where he stood and would not be subjected to the disappointment he would experience if after three, four or five years, an excellent machine was rendered obsolete, not by reason of the fact that the machine failed to work but simply because he could not get the spare parts for it.

Mr. Markey

It is with a certain amount of trepidation and lack of confidence that I speak on this Bill because I hear lawyers and members of the legal profession themselves expressing difficulty in understanding the technical complexities of such a Bill. I pity what many consumers will face in trying to understand the contents of this Bill. After all, it is for the consumers themselves that this Bill and its benefits are intended. There is no doubt that the Bill does bear witness, in its complex terms, to the rather sophisticated and complex nature of the market place today. So complex and sophisticated is that field that I should have thought that any legislation to meet the difficulties inherent in that market place would tend to be simple in its definition and in spelling out what it intends to do rather than being confusing in its contents. Perhaps the best thing would have been to repeal all prior and existing pieces of legislation and to bring in one codified piece so that anybody who wishes to avail of the benefits would have to peruse only one piece of legislation rather than many pieces.

I have always been a believer in the old dictum of caveat emptor as being sufficient guidance for anybody trying to hold his head solidly on his shoulders in regard to any purchase transaction, but I must admit—in the face of the various pieces of legislation that I have seen go through in the past couple of years, such as the Occasional Trading Bill and community bills like the Bill dealing with roadside trading and the Consumer Information Bill—that there certainly must be many people who have difficulty in the matter of a purchasing transaction. It has already been stated that this Bill weighs somewhat in favour of the buyer and to this extent it is different from the Sale of Goods Act, 1893. Examples of this lie in the exclusion clauses that are prohibited, for instance, “no refund” notices will now be allowed and credit purchasers who have no rights now will have certain rights under the new legislation.

If these benefits, as they are, are contained in this Bill and other benefits, the Bill must raise certain questions as regards whether it will be availed of by the people whom it is intended to benefit. Will a cost be the consequence of this legislation going through, a cost which may well be added to the actual price of the goods? If it is weighed any way in favour of the buyer is it, therefore, weighed too much against the seller and is there equity in all of this?

As a member of the Committee on Procedure and Privileges some months past I alerted this House and the Government to the fact that this House has within its Standing Orders certain rights as regards conveying a Bill of such complex nature to a select or special committee where it could receive really positive and very close attention, and that such a committee would have been the ideal forum and vehicle for dealing with Bills of this nature. Perhaps it is too late at this stage; perhaps there has been some agreement in regard to giving more leisurely and more positive treatment on Committee Stage and a more orderly treatment regarding the various sections. It would certainly have suited the stature of this House and of the Bill itself if it had been referred to a special or select committee. I wonder if the protections contained in this Bill will result in some hidden cost in the eventual price of the goods. We have experienced hidden costs in legislation before. In regard to labour legislation, some employers have, as a result of various Acts such as the Unfair Dismissals Act setting out minimum terms of notice of dismissal been reluctant, to an extent, to taking on additional labour, even when additional labour was warranted by the extent of their manufacturing enterprise at a particular time, because they saw in it certain difficulty in terminating employment. There is a hidden cost in legislation in that context. I wonder whether there is not also a hidden cost in this legislation.

I can think of no better forum than the Seanad, with so many of its Members in the legal profession, but if it is confusing and complex to them and difficult to understand in certain aspects, how difficult will it be for the people whom it is supposed to benefit? Will they avail of the Bill at all? Will they understand anything about it? Certainly, if people who are dealing in large volumes and large quantities of goods, for instance, people who buy wholesale in large quantities and retailers who buy in large quantities, feel a grievance as a result of a purchase transaction they will be in a position to avail of the contents of this Bill. Will the small purchaser, however—or the small businessman who does not buy in very big quantities—consider the cost of having to seek legal advice in trying to understand what exactly is available to help him in this Bill? Will he bother doing anything at all about it? On the other hand, if the seller of the goods feels that he may be subject to court cases at the end of the road, will he not add a certain little item of cost on top of the price of the goods? It is very difficult to see whether these hidden costs will, or will not, result from the passing of legislation like this.

The small buyer will probably find it difficult to understand his rights under this Bill and perhaps there should be a small tribunal or some forum which could consider that small buyer's rights and perhaps be established on a permanent basis to give advice on these matters. We should consider that on Committee Stage. There is no doubt that legal and court processes will have to be simplified for small purchasers involved as a result of this legislation. They should know, with confidence, that there is somewhere in which they can pursue their rights and that the whole matter will not be completely prohibited to them. What has been the experience since the Consumer Information Act was passed in 1978? Has that Act shown up instances where small consumers were able to understand the rights that were available to them? Have they been able to act upon them? I am sure the Department concerned have some information and some feedback in regard to this and it would give an indication as to how a Bill, such as we have here, will work out in practice.

Certain speakers have already raised the matter of defective vehicles, particularly where a person other than the buyer will come under the scope of this Bill. This will present certain difficulties and will provide great scope and a great field-day to all lawyers and solicitors trying to disentangle where and when a vehicle passed from one person to another and the condition in which it passed in its stages and so on, and where exactly the person in charge of the vehicle at the time stands in regard to the enforcement of the penalty clauses in this Bill. If we are speaking of danger to life and limb and road safety in general, then perhaps the Road Traffic Act is far more appropriate legislation than the Sale of Goods Bill for pursuing the matter of defective vehicles. In drawing up this Bill, and in teasing out all its implications, all the pros and cons of its various sections, and the possible inherent difficulties in its enforcement that have been pointed out on Second Stage, what answers have the Minister's officials come up with, in trying to close any loopholes that may well arise in those situations?

Other speakers have referred to the question of leasing not being covered; I wonder why leasing is not covered in this Bill. Does it mean that we will have before us another Bill at some future stage in regard to that? Advantage will have to be taken of the period between this Bill's final passing through the Houses of the Oireachtas and actually coming into operation, which should be sufficiently long to enable all the individuals concerned to be educated on the contents of this Bill. It should not just be left for the event to happen, where the person feels a grievance as a result of some transaction and has to face up to the question of whether he should or should not obtain legal advice in regard to taking action under this Bill. There should be an adequate transitional period whereby the Department concerned can educate and inform the public in general on the contents of this Bill. Small businesses, particularly, are going to be in a rather difficult situation. Their very structure hinders understanding of what exactly is contained in this legislation.

This Bill seems to make offences of many happenings and incidences in sale and buying transactions which I believe will always be present. For instance, ordinary human fallibility means that there will always be mistakes made, that accidents will always happen in documentation or whatever processes are laid down in this Bill, even in recording documents, in the recording of defective vehicles—of when they came into a premises, when they left and what work was carried out on them. It is a bit like the imposition on farmers of requiring them to keep accounts when their whole psychology, attitude and make-up are not geared to such an imposition being made on them rather suddenly. Perhaps this Bill is going a little bit too far in making offences of many incidences in the actual sale and purchase transactions, which will present difficulty.

Having made those few comments, I believe that the Bill does contain benefits, as no doubt it was intended to. If the Department officials have gone into all the pros and cons and the implications of the various sections, and seen the difficulties that may well be there, could the Minister tell the Seanad whether or not they are satisfied that the Bill can cover any loopholes?

Mr. Lambert

In welcoming this Bill I pay tribute to a wide cross-section of the public who have contributed to the various reports of the National Prices Commission and the Consumer Advisory Council over the years since Professor Whincup's report in 1970. We are inclined to forget the amount of work behind the formulation of this legislation. As Senator Robinson has pointed out, when enacted it will only bring us into conformity with legislation pertaining to other EEC countries. I should point out, on behalf of the private sector, that most Irish manufacturers, particularly those with export trade, as a matter of principle have adhered to the various factors contained in this Bill and, indeed, have to date been doing so on a voluntary basis.

We have heard a lot about the motor industry and I have every sympathy with their submission, but we must take into account the number of accidents and the dramatic statistics which are recorded regularly, Every citizen will applaud a clause being included in this Bill which will pertain to a certificate of roadworthiness, or some warranty that will prevent accidents. I am very interested in the prevention of accidents and I feel that, in the effective administration of the Bill, the insurance companies could co-operate in ensuring that they have sight of any certificate that is decided upon before they issue cover. This might encourage them to take on more motor insurance at more appropriate rates. I should like to see the insurance institute and the motor industry play a more active part in the prevention of accidents and anything that this Bill can do to help the ordinary citizen in avoiding such accidents should be taken into consideration. It would also save on expensive claims in insurance and, perhaps, a certain amount of Garda time.

I have a particular interest as a consumer and as someone interested in security because quite recently my Ford Granada Ghia car was stolen twice in four days from private car parks. I should like some guidance from the Minister as to what liability might arise under this new Bill. In the first instance I parked it in the RIAC car park when I was going to a dinner. I locked it but when I came back it had been stolen. It had been taken for a joy ride and vandalised. I was lucky to get it back. In the case of the club, I pay an annual subscription that covers car parking facilities but the club maintains it has no liability and that the car is parked at the owner's risk. Under this Bill will the club be liable, despite their disclaimer, since I have paid my subscription towards car parking facilities which are supposed to be supervised? I was so distressed I took taxis for a few days. I had a meeting in Trinity College and when I drove in there I was stopped at the barrier and questioned very severely as to my reasons for wanting to park within the confines of the college. I was allowed to park there. I went to a meeting and after two hours when I came out, I found my car had been stolen. I had it locked and the steering lock was on and so on. In that case I did not pay a subscription but on the other hand are the owners of that car park liable where the entrance facilities are strictly controlled?

I mention this in the interests of the public generally, because it raises the question of the responsibility of car manufacturers. There has been comment recently over the easy accessibility to Ford cars in Northern Ireland, there seem to be so many duplicate keys available that some research should be done by the motor industry as to how safe a locked parked car is and what are the chances of it being stolen. I felt, from my experience, perturbed about the complacent attitude of the motor industry particulary when one thinks of the situation in Northern Ireland where cars are easily stolen and used for crimes which we all abhor. I hope that this Bill will help both the motor industry and the insurance companies to play a more active part in the prevention of accidents and the prevention of crimes which lead to the destruction of property and life generally.

In the Dáil debate the Minister answered the question of danger associated with the sale of inferior imported electrical goods and stated that regulations are constantly policed by the Department in conjunction with the IIRS. I mention this because there does not seem to be the same protection where food imports are concerned. Home manufacturers have to adhere to certain standards of hygiene because there are regular visits from inspectors. Access of foreign imports into this country, as I have said in previous debates, is the easiest within the EEC. I should like to draw the Minister's attention to this aspect of consumer protection and consumer rights. There should be similar regulations imposed on imports of food as there are for defective electrical and other equipment.

I should like to raise another point which at first may appear somewhat unusual. The practice of newspaper and magazine articles appearing under noms de plume or pseudonyms is on the increase and the styles range from “a Special Correspondent” to the use of fictitious names or titles, in many cases misleading the reader. Where these are unsigned are they taken as the editorial view of the paper? It seems to distance whoever the writer is from the contents of such pieces. The use of pseudonyms creates in the reader's mind the impression that an author with the same name exists and that he is prepared to stand over the article. This occurs more often in the gossip columns and produces two distasteful after effects. First, spurious legitimacy is conferred on the contents of such articles and the reader can be misled. For better or worse people tend to believe what is written in the newspapers. Secondly, those who are singled out for comment can suffer and apologies rarely take the same space or position is the offending article.

Journalism in Ireland has rightly been commended for the general responsibility and objectivity of its practitioners. Many senior journalists have expressed their resentment to me about the use of pseudonyms and fictitious titles since this can lower the tone of the profession. Perhaps the Minister could guide me as to whether the consumer who purchases a newspaper has adequate rights of protection under this Bill and the Consumer Information Act, the right to expect proper information regarding a journalist's identification particularly if an article refers, favourably or unfavourably, to a reader who has purchased the newspaper or magazine. I welcome the Bill.

Mr. Harte

I welcome the Bill. It goes a long way towards introducing a means by which the protective services of the State in this field can be utilised and better availed of by people who feel aggrieved. To a great extent it gives them a permanent structure through which they can act. It goes some way towards giving the community as consumers access to the centre of power. I say some way because I do not mean all of the way, but it is a step on the way.

I am not suggesting, while I welcome the Bill, that it satisfies all that is needed to protect consumers. It is something that is on its way to better things and that is what generates my interest and welcome. It is clearly up to the politicians and other people involved in the consumer protection area to see that advances on this Bill follow. It is incumbent on interested parties in consumer affairs to keep a watchful eye on developments because this lays the basis for good development.

Speaking as a layman, I found difficulty in understanding everything that was contained in the Bill. It looked to me after a while, getting a little bit bored reading it, like a long legal document. The evidence of that has been shown here because the people who got the best out of the debate are those who have some legal background and knowledge or who have some training and experience in this area. Those who are sellers are consumers in some other respects, I am as interested in their welfare as I am in that of the people I would be more or less talking about. My main concern lies in being ever vigilant on behalf of consumers. I say that largely in respect of the individual consumer. I say it also in respect of the means by which he can get both redress for his complaint and compensation. I cannot stress that enough.

Although the Bill does not deal with compensation arising out of a claim the question of redress is still there in that consumers can, through the director of consumer affairs, get at the people whom they say have cheated or misguided them and they can bring prosecutions. They have to adopt a separate procedure if they want to get compensation if they feel very aggrieved. It could be argued that the ideal would be to have the two situations linked together in one Bill. I am not too sure that that type of legislation would work unless there were other bodies in existence which be more effective than the present national consumer authority. Something on the lines of a Ministry of Consumer Affairs would be needed to back up that kind of Bill. In present circumstances, I feel it is not on. These are areas that can be debated in the future. The Bill has laid the foundation for that and I look forward to further developments. It could well be argued that a Minister for Consumer Affairs, if such were to be contemplated, might not work for the consumer. He might, in fact, in some cases work against the consumer. I am not being adamant about this matter but it is an area where there is scope for a lot more debate.

While I expressed a great deal of satisfaction with the Bill there is need to widen the discussion and deal with the best means of protecting consumers' interests. I mentioned the National Consumer Authority but they do not have teeth. Would a more effective one be helpful with similar powers to a Ministry or is that a practical proposition? Would it be realistic? On the other hand perhaps a type of local provision by local government for consumer protection might be more beneficial to supplememt what exists at present. In other words, what can we do to improve the scope, control and operation of consumer protection and the relationship with private groups that are involved? Is there room for the argument that small clains for compensation should be dealt with through separate courts to avoid the delay and expense of going through the ordinary courts, and so on? We are heading in those directions. A fuller debate on those areas would be very beneficial to bring about the real consumer protection that is needed to give the consumer a real share in the economy.

In fairness, the Bill tries for a unified trading standard but it misses out in some fields, for example, in that of weights and measures. Perhaps in the type of debate I suggested those arguments could be used helpfully to advance the legislation. Again there is scope on the question of surveillance and advertising. As regards advertising, there is a statutory code of advertising practice. I wonder how effective it is as regards consumer protection. I do not know how far they can go to test advertising claims or to sponsor the testing of claims made by certain advertisers. The consensus of opinion on consumer matters would support the idea of a stronger Government agency with powers and facilities for large scale testing. That is called for in a lot of cases. It would need scope for adequate publicity for its reports, for dealing with consumer complaints and for acting as a channel for devising new regulations and enforcing them. These are the practical methods necessary to be pursued. I am not saying that there are none of them in the Bill. What I am saying is that there is scope for advancement to bring the consumer more into the scene as part of the economy rather than being just a consumer. They should have the right to know what competition is about and how they can make an effective input. Prices were mentioned earlier on and this is one way that we could deal with that question.

I mentioned local government and so on. What is wrong with information services being available on the high streets? What is wrong with a grant being given to the corporation to put up a site where consumer protection and consumer advice could be given? These are areas where there is scope for further development. The Bill has given that scope to the Minister who introduced it.

As socialists we are aware of the increasing deterioration in living and working conditions not only in Ireland but in the whole of Europe where the capitalist system obtains. Consequently I see—whether it is a bias or not I do not know—the consumer being the person who is losing out in the widening gap between the producer and consumer. I am not putting forward anything to suggest that the seller has not got any rights, because he is a consumer in another instance. Of course he has rights. What I am saying is that the actual producer as distinct from the person who runs a monoply with no registered offices in this country is very far away from the consumer. That gap is widening and the power of the consumer is diminishing.

We, as socialists, would like to see a situation developing where some kind of action could be taken by a social-economic group to enable the protection of consumers' interests to be developed much more strongly. We could go that far and are extremely interested in seeing that consumer information is unbiassed. We are very concerned that consumer protection against misleading advertising is pursued. In this respect I propose to outline where some of the abuses lie in the hope that I can highlight the need to create an island of consumers and not solely an island of big business, because the consumer is part of the economy and should not be seen just as a consumer.

The Bill is encouraging and lays the foundation for more effective legislation. Consumers should be brought into the community through a much more permanent structure than they have through the Bill. We would like to see them in a position where they could organise properly as a social-economic group and be given access through the courts for both compensation and prosecution. I know they can bring prosecutions through the Director of Consumer Affairs but I am talking about the social-economic group having power to go to court themselves. That sounds a little radical but it is not all that radical in the final analysis.

The Bill, good as it is, will not wipe out illegal agreements and the dominant positions of certain people but it is a genuine endeavour to do so. If money could be advanced through the budget, for example to strengthen the staff of the consumer authority so as to move on from there to the creation of a consumer network it would be a further step. I say this particularly since the monopolistic tendencies of multinationals who are very far removed from us in not having registered offices in Ireland or, for that matter, maybe not even in Europe, damage the rights of consumers. The consumer dealing with those people is not in a position to demand the right to competition. Consumers should not be left to take up defensive policy positions but should, with State aid, be able positively to promote their interests with emphasis on preventive measures and recognition of their rights. Consumers are not only purchasers, they should be full partners in the whole economic process.

On the question of advertisements, surveillance, vigilance and the right to tests, it is very serious when harmful substances, used frequently in foodstuffs. cleaning materials, cosmetics, pharmaceutical products and so on are advertised through the media. The consumer does not know what the properties are, only that they have some chemical name or else they are generally described as colourants. This is not good enough. Apart from the harmful effects on society from the consumers point of view, and the damage it may do to health, it is wrong that they can be advertised without somebody being able to test them. The onus must be put on the producer to provide prior proof of the harmlessness of anything that he is going to advertise or put on the market.

There is also the question of harmonisation of laboratory standards. In some European countries research has taken place only after numerous complaints and there has been evidence that some of the substances are of a harmful nature. This does not help to put the onus of proof on the person who is advertising. Something stronger than that is needed. Instead of the consumer being on the defensive he should be in a position where he can put the onus on industrialists or producers to prove that the product they are producing and putting on the market or advertising is harmless. Very often there was no widespread publication of the findings of the research carried out in Europe. The administrative and professional side of it were very secretive. If we become involved in that, and we should, the results of tests should be publicised widely. We should also know about the administration and professionalism involved in it.

I said earlier that the seller was also a consumer. Sometimes people might think that I do not recognise this fact. I have dwelt on the word "consumer" much more so than on the word "seller". I believe that the disadvantage lies with the consumer. There has been a great emphasis in this debate on the legal aspects. I have no quarrel with that. Business people are better geared, better structured, better legally advised and can afford to make greater use of much more effective organisations than the consumer can. The consumer has not the same effect and his power over the years has been diminishing.

I mentioned in the course of winding up on the Appropriation Bill that an imbalance existed between the powers of the consumer and those of the manufacturer and supplier. I attributed this to the fact that there was a concentration on mass production. This is one of the factors that has contributed to a widening of the gap between the consumer and the seller or producer. That imbalabce will be remedied to some extent by this Bill but there is a long way to go. I am not suggesting that producers should gang together and create a great plot. Not only is there need for strong mechanisms, and we have a few in the Bill, to deal with consumer protection, there is need for constant and effective policing of how those mechanisms are doing in the light of the rate and pace of change arising from the spread of technology. The need for consumer protection arises from other activities of the consumer society. I mentioned the mass media earlier. Through the mass media and by large-scale advertising people, in increasing numbers, are influenced to buy. Maybe this is the manufacturers' way of getting the most out of their plants and their workers, but it does not end there. I want to see plenty of work for the workers and plenty of advertising to keep jobs alive, but it does not rest there. The dishonesty commences when the producer, manufacturer, advertiser or agent for the producer has stimulated people into buying in increasing numbers.

This is not sufficient in itself and a campaign gets going, the little trick called "re-consuming". There is misleading advertising. The belief is promoted by subtle means that the product is the greatest in the world. It is suggested that last year's product should be thrown away and this year's product should be purchased.

The psychology is clear. It is not a question of advertising to try to sell people what they need. It is the psychology of creating a scrambling selfish system, and the vicious circle continues. In circumstances like this the consumers must be protected. They must be protected against aggressive and misleading publicity about goods which are detrimental to health. The manufacturer's logic is understandable. Naturally he tells the advertising people that his campaign must be geared in the first instance towards persuading consumers that a certain product is good and then getting them to throw it away, or to change from it to the latest product advertised. The procedure creates dissatisfaction with existing products. That is understandable but it is not beneficial to the consumer. Manufacturers and sellers have problems but that system is not very satisfactory to the poor and the lowly paid who will be the greatest sufferers. Legislation must be geared to protect their interests to the full.

In effect I am saying that through the mass media, manufacturers and advertisers co-operating and in collusion with each other, trick and cheat, using the system that is legally open to them to do so. Because the consumer has so little power there is no way of taking them to task and having a full scale examination of what is advertised on the mass media. In the final analysis, no matter how we argue this, no matter what legal argument is put forward, the consumer is the most vulnerable person and his power is continually diminishing. If he is not given the fullest possible protection, with regular enforcement of all the consumer protection that is in existence and all the legislative mechanisms that are available to him, and if there is not a regular updating of those mechanisms, further technological developments, an increase in the size of manufacturing units, the spread of the multinational corporations will continue to diminish the consumer's power.

We in this House and Deputies in the Dáil have the greatest responsibility to the consumer. There is a physical and mental gulf between the manufacturer and the consumer and, if we are not vigilant, if we do not bring in more legislation and enforce it, the little bit of power and protection the consumer has will diminish. Many of the things I am saying are an unpleasant reality. I do not make any apologies for saying them, and I do not make any apologies for placing great emphasis on the need for continual vigilance. These tricks are completely undesirable. The consumer has not got access to the mass media and other forms of advertising to try to redress the balance. The consumers who get the rawest deal are the poor, the ill-educated and the elderly. These people should be the concern of every one of us and certainly they are the concern of the Labour Party. We must give priority to their needs. We are interested in the seller, the manufacturer, the producer, and so on, because he produces jobs but, as a socialist party, we make no excuse and no apologies for laying emphasis on the protection of the poor, the ill-educated and the elderly. They are of particular interest and concern to us.

Earlier I made reference to the tendency for a physical and mental gulf to grow between the manufacturer and the consumer and I mentioned tricks built into the system. I should have stressed that there is no evidence to show that the manufacturer is not concerned about bridging the physical and mental gulf, possibly because it would not benefit him very much. Since it is well-nigh impossible for the consumer to bridge that gap, the onus is on this House to bring in the strongest legislation possible to protect the consumer. I am not saying the manufacturer does it with the idea of trampling the consumers into the ground, but he does not see it as his responsibility to bridge that gap. He gets his advice through the various organisations, through the legal bodies, and so on, and as long as he is just about right he is happy enough. The onus is on us to provide more consumer protection through properly organised bodies and agencies.

It is the Minsiter's responsibility, it is the responsibility of both Houses of the Oireachtas, to campaign as hard as we can to see that the consumer gets the best possible protection, to see that the situation does not deteriorate to the point where in fact it has deteriorated—there is the "re-consume" trick—and to see that people do not start producing goods of a lower quality in order to stimulate the need for replacement.

This is the Sale of Goods and Supply of Services Bill. If you are going to produce inferior goods and if you want to take advantage of the mass media to get people to "re-consume", if the goods thrown away need a service, why should you bother too much about providing too good a service? You would defeat the "re-consume" trick and you would not be too happy with some obstinate consumer who was looking for services in an abundance of stocks, spare parts, and so on. I could not see manufacturers going overboard to see that stocks, spare parts, services, and so on, were there in abundance. They will do as much as is necessary to get by, or to satisfy people to some degree. If I am right in my argument about manufacturers trying to get people to throw away last year's goods. and using the media to do that then it would be a terrible contradiction where goods need a service, to start producing too good a service for those goods.

It seems to me that inherent in the whole question of the sale of goods and supply of services is whether it is in the best interest of manufacturers who employ agents to advertise for them to give the best possible service. Some give a good service, but that does not apply across the board. Certainly in many cases, if you did not give a good service you would not be too long in business. There are areas where a good service is not given. This is where the consumer is vulnerable and needs protection. If the mass-media can be used by manufacturers and their advertising agencies, and so on, to trick and cheat people into buying goods, there is no reason why the State should not use the mass-media to ensure that the consumer knows all his rights. There are one or two programmes on television and radio which do this, but the State should tell the consumer: "The Sale of Goods and Supply of Services Bill, 1978, has gone through both Houses of the Oireachtas. We want you to get to know your rights under thar Bill. This is the agency to which you go." Why cannot we advertise to procect the consumer? The consumer is not just a buyer of goods. He is part of the whole economic situation.

I welcome the Bill. It is a step forward. If we are really serious about this matter we should continue to introduce consumer protection legislation. We should examine it at regular intervals. We should encourage socio-economic groups to get involved. We should encourage local government to set up advisory services and, if necessary, we should ensure that free legal, aid is available, or that a grant is given to the free legal aid services to set up a special sector to investigate the question of consumers' interests, not only to advise on them, but to represent the people's interests arising out of complaints under the existing legislation. We should encourage the free legal aid people to show where the legislation is not having an effect.

I feel strongly about this subject. There is more scope for consumer protection. I am not worried about the big business people. They have plenty of legal aid, plenty of well-organised bodies, plenty of resources to fall back on, and plenty of know how and expertise to give them all the protection they need. The consumer is the person who needs our help and the onus lies on both Houses of the Oireachtas to provide that help and I urge the Minister to bear that in mind.

Mr. Mulcahy

Ba mhaith liom fáilte a chur riomh an mBille seo. Ceapaim gur céim mhór ar aghaidh é chun go mheadh an gnáth dhuine sa tír seo sásta le pé earraí a bheadh á gceannach aige. Tá a fhios againn go léir go bhfuil an-staidéar ar siúl san Eorap; san mBruiseal, le déanaí ag leagadh amach polasaí den tsaghas seo. Is mór an áthas atá ormsa go bhfuil beirt Éireannaigh i bhfeighil an polasaí sin a leagadh amach, duine amháin acu mar Choimisinéar agus an duine eile mar stiúrthóir ar an Roinn atá i gceannas an taobh sin de.

I welcome the Bill. It is another step in dealing with one of the great problems in Irish society which is what I call the "Ah, sure it will do" complex. The Irishman tends to give in fairly easily when it comes to quality of product. I should like to change the nature of the debate on the Second Stage of the Bill by putting some emphasis on the quality aspect; I see this Bill as providing the sanctions which will encourage the producer to use the methods of modern quality control to ensure that the product is in a fit state for consumption.

The future of this country depends on industrial development. We have mentioned this many times in this House. To be successful in a modern competitive society, industrial development must imcorporate the best of the management techniques developed under the heading of quality control. We see examples of that in other countries. Japan, which some decades ago was seen as an industrial society producing secondhand goods and copying other people's output, is now probably in the leading position in the world in the production of quality goods. This did not happen overnight. It happened because a conscious effort was made by the Japanese to develop the methods of quality control and to put them to work in their factories. An "ah, sure it will do" complex was not accepted. In fact, the motto developed there was "the zero-defect programme". To that extent, the tendency to say "Sure you will always have problems", or even, as Senator Markey said, paper work can go wrong and we must understand that, are relics of an attitude I should like to see disappearing. We must not accept secondhand work: "zero-defect" is the motto and "zero-defect" it will have to be.

I will try to illustrate that. I am sure every Senator in the House is happy about the fact that the best methods of quality control and the best "zero-defect" programmes are used when they sit in an aeroplane and are flying at 30,000 feet at 600 miles an hour. They hope that the manager of quality control in the factory which produced the fasteners holding on the wings operated those schemes. They are not willing to say: "Ah, sure the paper work could have gone wrong." I am not saying Senator Markey actually said this, but I am building a little on what he said. That is an attitude that gets into industry and it was the attitude in Irish industry two and a half decades ago. Two decades ago, in 1960, I worked as a quality control manager. At that time I was the only person in the country who was a member of the American Society of Quality Control. Now there are many members. I believe a new Quality Control Institute is being set up, with staff and is to be opened at the end of next month, possibly by the Minister. This is great progress.

I see the Bill as the sanction, the systematic way that is being put in the hands of the consumer to enable him to throw pressure back on the producer to employ these techniques. If they are employed there will be some added value. You do not get them for nothing. We have talked about costs. Will there be extra costs involved? Of course there will be extra costs involved, but it is a matter of balancing the costs with the benefit, the benefit of the improved quality. This Bill is a major contribution in this area. I hope some positive approach will be taken which will be an encouragement to producers to adopt quality control procedures and that even though they have sanctions hanging over them, that they will be motivated by a positive viewpoint internally to set up these procedures.

I agree with the Senators who spoke about the way this Bill applies to the motor trade. I will not elaborate on it. I agree that applying a criminal sanction is probably not appropriate under this Bill: it might be appropriate elsewhere. At the same time, I would, make the point to the motor industry that it is up to them to employ the best of modern management quality control techniques to ensure that vehicles being passed over to consumers are roadworthy. I should not like to see us getting to the stage where a Ralph Nader would be needed in Irish society to ensure that this Bill is fully implemented. The positive aspect I am trying to emphasise is important; the positive aspect of the producer of the product, the person who is cutting the tool to size, the person who is assembling the machine, the person who is producing the motor, or whatever else it is. You cannot inspect quality into a product; you can only build it in and a stitch in time saves nine.

Dr. Whitaker

First, I should like to express a general welcome for the provisions of this Bill. Like some other Senators I do not understand why its scope does not extend to leasing. Secondly, I should like to support those Senators who have expressed misgivings about the introduction into section 13 of a criminal responsibility for the issue of an incorrect certificate by a motor trader. I hope that on reconsideration the Minister will decide to rely entirely on civil liability which should be as severe as is necessary in terms of potential damages. Thirdly, I should like to take this opportunity to say that I do not understand fully the reasoning behind section 14. Section 14 is the section which deems a finance house to be a party to a particular kind of sale and makes it jointly and severally liable to the buyer for breach of contract of sale and—I understand this is new—for any misrepresentations made by the seller with respect to the goods. The section as it now stands was welcomed in the Dáil as being very enlightened and as being beneficial to the consumer. I recognise that protection of the consumer is necessary and desirable and that abuses can arise if finance houses are too liberal in financing sales or enabling sellers to push their wares. But I am not persuaded that the imposition of joint and several responsibility on the finance house is altogether fair and reasonable, even though it may have been done in Britain.

Perhaps I should make it clear that I have not been asked by the finance houses to make any representations on their behalf. I am raising this matter entirely on my own initiative. The question is why a finance house should be liable in particular cases, while the provider of finance is not liable at all in other cases. For example, if I pay for a car by overdrawing my current account in a bank, no liability attaches to the bank in connection with the transaction. If anything goes wrong, my only recourse is against the supplier. It would be utterly unreasonable to involve the bank. Even if I borrow from a finance house myself on a hire purchase or credit sale contract and pay the supplier with the proceeds, no liability attaches to the finance house which has provided me with the money if there is anything wrong with the goods. Again, this seems right. But if the finance house acquires title temporarily to a car because it pays the supplier direct, and then collects the money from me on a hire purchase or credit sale agreement, section 14 makes the finance house jointly and severally liable with the supplier, if the supplier has misrepresented the quality or roadworthiness of the car. I do not quite follow the logic of this. I may be told that the legal difference, the passing of title to the finance house, justifies involving it in some liability. I would be prepared to accept that.

It may be argued further that there can be a social problem if credit sales are made too automatic and easy. I do not deny this. But surely the Central Bank can do something to make sure that finance houses cannot extend credit too liberally for any particular purpose, and can even make it a condition of their banking licence that they do not buy too much from any supplier for resale on hire purchase or credit terms.

I am really asking are there adequate social grounds for differentiating as much as this section does between one form of finance and another? In any case, surely the supplier should bear the principal liability and the finance house be liable only in a secondary and limited way, not going, perhaps, beyond its original financial input. I should very much like to hear the Minister's views on the questions I have raised on this section.

Mr. Kiely

I welcome the Bill. The Minister, in his opening remarks, said that this Bill in a number of respects complements the Consumer Information Act, 1978, which was designed to ensure that the consumer would have protection against misleading advertising and descriptions of goods and services. What I am concerned with is my own occupation, farming, in respect of which I should like to point out that in the sale of pedigree cattle the dams are recorded. In some of the advertising in catalogues the records are fictitious. When cows are recorded and certified by the Department they must carry a Department reference number. I have seen animals sold bearing no reference number quoted in the catalogue, with a definitely fictitious record for the dam of the animal, the purpose being to render the animal more valuable than it should be. This is something I should like to see protected.

There should be an onus on auctioneers who are paid by the purchaser at the rate of 5 per cent. They should give correct figures, ensuring that when they are cataloguing animals like this the Department's reference number be appended. Indeed, there should be some penalty imposed on any farmer or breeder who would resort to such low tactics as those to which I have referred in order to make unjustifiable profits.

Sufficient has been said already about the controversial section 13. While the consumer should be protected I should not like to see a reputable dealer subjected to such convictions as are imposed in section 13, which would, perhaps, be to the detriment of the reputable dealer leaving the "cowboys" or people who advertise under box numbers to gain therefrom. Anyone advertising goods should do so in his own name; he should not be ashamed to do so and should not advertise under a box number. This is something that should be investigated.

I would not mind if there was some system whereby all vehicles would be tested. I was delighted to note from the Minister's opening remarks that he would be prepared to meet the Society of the Irish Motor Industry to discuss this controversial subject. Perhaps thereafter the motor industry would be satisfied with all of the provisions of this Bill. I welcome the Bill and I hope it will afford the consumer adequate protection.

Mr. O'Brien

I join in the general welcome of this Bill. Indeed, it is overdue. The Bill provides the basis for further legislation in this field, when it is seen how effective its provisions will be or perhaps when the need for further amendments become obvious. In so far as its provisions are directed at protecting the right of the consumer or the buyer the Bill is very welcome. The existing legislation dating back to the end of the last century tended more to protect the seller. Therefore, this new approach of protecting the consumer or the buyer is to be heartily welcomed.

There are cases that come to mind which will not occur with such ease to the perpetrators of such unjust practices in the future, as happened in the past. I think, for example, of the sale of defective cars and so on. It is most desirable that the provisions of the Bill prevent the buyer or consumer from being tricked or codded in any shape or form. In so far as its provisions deter those who sell these articles, or goods of other kinds, from bringing off such smart moves on an inexperienced customer then they are to be highly welcomed.

I hope that when the Bill becomes law, which will be in the near future, a reasonable time will elapse in which to enable everybody to become aware of its provisions. I should not like there to be a persecution of small business people and others of that calibre who, for one reason or another, might not be fully aware of its provisions and land themselves in serious trouble mainly through lack of information. With that reservation I welcome the Bill and hope it will prove to be as effective as Senators hope.

Mr. McDonald

I should like to make one or two points on this Bill. I welcome the introduction of this Bill and compliment the Minister on so doing. We have had a very wide-ranging debate. Practically every point has been made. Nevertheless I hope that Irish products will reflect a greater spirit of pride in the finished fruits of Irish endeavour so that we will not need this Bill, although I believe it is certainly no harm to have it on the Statute Book.

Reading through the Bill—which appears to be quite complicated—I note that "goods" or indeed "services" have not been defined in section 2. I suppose that means that the Bill covers a very wide field. I do not know if it is intended that the Bill's provisions should cover the sale of livestock. It deals fairly well with services. I might mention one type of service in passing. I listen at least once a week to a service provided by Telefis Éireann, a report on livestock marts throughout the country. If one were to keep a note each week of the remarks of the gentleman announcing increases of so much per kilo, one would be lead to believe that cattle were more expensive than gold.

If a semi-State organisation, like Telefís Éireann, purport to give that service the announcer should be exact in the numbers exhibited and in the prices. Certainly at present it misleads the public and, in many cases, prompts people to put their goods or cattle on sale when possibly—if they knew the exact situation of the market—they might not be so tempted.

I should like sincerely to endorse the case made by Senator Whitaker, and indeed by many others, on section 13. I support those views, not just because the Irish motor traders are very perturbed about it but since it has been clearly pointed out that this section will not cover quite a significant number of sales of vehicles. Therefore, it is a little unfair. I hope the Minister will be able to introduce some amendments on Committee Stage in order to improve the Bill in this regard, ensuring that all sections are treated in the same way.

In an era of increased prices and increased costs of services the consuming public are entitled to the greatest possible protection. I hope that the Minister will bear this aspect in mind—even though this Bill is bridging a considerable span of time—and that by its implementation he will be able to amend existing legislation. In the main the services supplied and the quality of goods supplied here and produced by our people are second to none. Nevertheless there are some people who appear to get by very comfortably on short-dealing the public. This practice must be tackled and I wish the Department and the Minister every success in so doing. I am sure that he will have the full support of the House.

Minister of State at the Department of Industry, Commerce and Tourism (Mr. R. Burke)

I should like to thank the many Senators who spoke on the Bill for the constructive way they approached this debate. As I said in my opening remarks, it is a Bill which is overdue. I agree that, having waited this long, the Bill should—when it leaves this House— be as good and as effective as possible. Certainly this will be my approach during the Committee and other Stages.

Many points were made by Senators during the debate. While I am satisfied that in many respects the Bill is as it should be, nevertheless, I appreciate the merit of many of the points made and I will be considering them carefully before the next Stage.

Turning to a number of the points made, I shall refer first to the last speaker, Senator McDonald, who spoke of RTE and their services. RTE are not providing a service under contract. Consequently, that is not covered by this Bill. The term "goods" is defined already in the Principal Act.

We had a number of Senators from all sides raising the question of bailment and leasing. There were Senator McGuinness, Senator Whitaker and a number of others. The general question of bailment is a separate area of law in its own right. As such, it was not tackled in general terms in the Bill. Furthermore, I am advised that an extensive study of this whole area would be required if that law were to be substantially changed. Secondly, while Part IV of the Bill—dealing with the supply of services—did not set out to cover bailment situations specifically it does cover them in so far as they are contracts for the supply of a service. My Department have not received any volume of complaints which might suggest that the bailment area needs to be substantially overhauled at present. Should there be a drift to leasing envisaged by the various Senators, I would be prepared to have this area of leasing examined in depth with a view to establishing what needs to be done.

With regard to the question of consolidation of the sale of goods legislation, Senators Molony and McGuinness said they would like to see all the legislation consolidated into one Act. While I appreciate that this would be of benefit to consumers, traders and lawyers alike, it is not a practical proposition at this stage. All we set out to do in Part II of the Bill—which deals with the sale of goods—was to amend certain provisions of the Sale of Goods Act, 1893 in order to bring the balance of legal responsibility between consumers and traders more into line with modern circumstances. We did not set out to overhaul the 1893 Act as a whole. In any event, we are creating new statute law in this Bill in such areas as services generally, directory entries and so on. Therefore if we took the approach of consolidating the law on the sale of goods it would mean that it would not be possible to legislate in these other areas as well.

Several Senators also mentioned misrepresentation and maintained that this was not the appropriate Bill by which to amend the law on this subject. I appreciate that the United Kingdom Misrepresentation Act, 1967—on which sections 40 to 43 of this Bill are based—has more widespread application than I am proposing. Indeed, I agree that it might be a good idea to amend the law in general relating to misrepresentation. However, the Bill relates only to the areas of sale of goods, hire purchase and supply of services. I am satisfied that it is reasonable to use this opportunity to amend the law on misrepresentation as it applied in these areas only. Senator Kiely mentioned misrepresentation in the livestock industry. This would be covered by the misrepresentation section in this Bill.

There was substantial discussion of the provisions of section 13, dealing with motor vehicles. Practically every Senator who spoke referred to this section. In particular they referred to the requirement on motor dealers to issue roadworthiness certificates in respect of the cars they sell. I explained to the House on the last occasion that I intended to meet the Society of the Irish Motor Industry before we reached Committee Stage. I met representatives of the SIMI last week and I am arranging for further dialogue with them with a view, perhaps, to restructuring somewhat the extent and scope of the section as a whole.

Regarding the criminal offence element of this section, many of the Senators who spoke, and indeed the SIMI representatives I met were of the opinion that while the implied condition in subsection (2) was a welcome innovation the exposure of motor dealers to the risk of criminal prosecution for failure to issue a correct roadworthiness certificate could not be justified. I should say that this Bill is unashamedly designed to provide the maxium protection for consumers. However, I do not feel that their interests will be protected by creating a criminal offence in this instance. Therefore, I have been convinced of the justice of the arguments of the Senators and of the representatives of the industry and on Committee Stage I will be introducing an amendment removing the criminal element.

Senator Molony felt it was not appropriate to have any criminal offences included in a Bill of this nature. While I agree that the main thrust of the Bill is in the area of civil law, I would maintain that we are concerned in a wider context with protecting ordinary people and their rights. Section 11, for example, provides among other things that any person in the course of business who puts up a notice to the effect that the implied rights being given in Part II do not apply will be committing an offence. I am not suggesting that retailers would try to "con" the public in this way into believing that they had no rights, but I am satisfied that nevertheless there should be a deterrent in the form of criminal sanctions.

Senator McGuinness raised the question of the Director of Consumer Affairs and the staff and financial resources available to him. At the outset I should say that I am conscious of and respect the director's independence in carrying out his functions. I am, of course, far from satisfied that he has the staff necessary to carry out these functions as he would wish. I have already had discussions with the director and have taken action to remove his staffing problem, which I hope will be sorted out in the very near future.

Senator Lanigan while referring to section 13 like many other Senators, mentioned the cost-effectiveness of consumer legislation, the fact that certain interests in other countries are beginning to question whether the protection the consumer is getting is worth its cost. I would suggest that this argument is not completely relevant to this country since we all would admit that consumer legislation here has not extended to areas of protection reached elsewhere and that we would have much farther to go before it would be legitimate to question the cost element. In any event, in essence what we are doing in this Bill is providing the consumer with a right to expect, and get, a certain level of satisfaction from the goods and services he buys or are supplied to him.

Senator Markey questioned whether the cost of implementing the legislation would push up consumer prices. This may well happen to an extent; we do not know. I feel that consumers are entitled to expect satisfaction from the goods and services they buy. I feel that the National Prices Commission would hesitate to approve price increases allegedly applied for as a result of this Bill.

Many specific points also were raised by various speakers and I shall try to deal with these. For example, several Senators saw a problem in the definition of "consumer" contained in section 3. Senator FitzGerald made quite a long and very helpful contribution on this point. My approach here is that, in simple terms, a consumer is a private citizen buying a product from a business seller for his own private use and consumption. The Senators who spoke on this question had the same general approach. I do take the point, however, that the definition in the Bill might pose certain problems. I propose, before Committee Stage, to see if anything can be done to improve and tighten it up.

Senators FitzGerald and Lambert, speaking about sections 15 to 19 dealing with guarantees, suggested that a retailer should not be able to exempt himself from liability under a guarantee if he is also the importer of the goods involved. My officials have been discussing this and related issues on guarantees with the Confederation of Irish Industry and with our own legal advisers. Arising from these discussions we will be looking at the provisions relating to guarantees on the basis that they may need to be tidied up to a certain extent. No legislation we introduce should give an unfair advantage to the importer rather than our home industry. Anything I can do to tighten up the situation will be done to give equal, if not greater, protection to our home manufacturers.

Senator FitzGerald also maintained that it would be unfair to the business community if the provisions of the Bill were to take effect immediately on signature by the President. I agree that, as the Senator suggested, a breathing space should be afforded all those in the business of selling to enable them to revise their documentation and so on. Indeed, such a move would be beneficial to buyers and sellers alike as it would cut down potential confusion and allow both sides of trade to familiarise themselves with what is in the Bill. Accordingly I shall introduce an amendment on Committee Stage providing that the Bill will not come into effect until three months after its signature by the President.

A number of Senators raised the issue of informal courts for dealing with small claims. Although the Department are currently examining this area no firm decisions have been taken. Nonetheless it is crucial to my legislative programme aimed at improving the position of the consumer that quick, effective and inexpensive redress be available to aggrieved consumers. Indeed, the NCAC, when they reported on the question of small claims, said that unless justice is truly accessible consumer law will remain in the realms of pure theory. I find no reason to disagree with this view. Nevertheless, it is an extremely complex issue and this Bill is not the most suitable instrument for dealing with informal redress procedures.

Senator FitzGerald wondered whether section 33 of the Bill would make the hire purchase company liable for the supply of spare parts under section 12 and for guarantees under sections 15 to 19. The effect of section 33 is to make the dealer liable in such circumstances since it refers to the person by whom the "antecedent negotiations" were conducted. In fact the dealer is the party intended to be covered by the expression "antecedent negotiator". The hire purchase company would not, therefore, be liable in such cases.

Senator FitzGerald also suggested that the Bill should contain a provision to the effect that a contract which is in breach of the Consumer Information Act, 1978, will be void. However, the Consumer Information Act contains an exactly contrary provision. Section 25 of that Act provides that a contract for the supply of any goods or services shall not be void or unenforceable by reason only of a contravention of any provision of the Act. The purpose of this provision is to ensure that a seller or supplier, when pressed to enter into a contract, could not evade or avoid doing so merely by showing that he had breached a provision of the Act. It is intended that, notwithstanding this, the contract should on such grounds remain unaffected. A purchaser injured, or at a loss, as a result of falsely described goods, has, of course, an action for damages. Further, if he could show that misdescription affected the essence of the contract, he might succeed in having it set aside. But the mere fact of misdescription does not in itself invalidate the contract.

Senator Robinson, referring to section 14, made a point. Section 14 does not apply to hire-purchase transactions. It applies where a finance house cooperates with a seller in providing the cash necessary for the purchase of the product. In such cases the finance house does more than merely providing the cash. It encourages the consumer to make the particular purchase. The buyer might not have been in a position to buy the goods but for the availability of the finance house facility. Therefore it is fair that the finance house should bear a certain amount of liability for the goods bought.

Senator Cranitch asked what is the position in regard to section 12. Section 12 provides merely that, if a seller says he will carry spare parts for a certain period, he will be obliged to do so. It does not set out to force all sellers to carry spare parts for everything they sell. In my view such a provision would not be wise commercially or economically. What we have done is to introduce a compromise in this section.

Senator Lambert questioned whether the Bill protected consumers against misleading journalistic matter. The Bill does not attempt to control journalistic comment, which of its nature would be an attempt to interfere with the freedom of expression. I have no desire or intention in this Bill or in any other Bill I will introduce to become involved in that sphere. We, as a Government, have no desire to interfere with freedom of expression. The Bill deals with contractual rights and matters immediately relating thereto.

Senator Lambert in the course of his contribution told us of the unfortunate incidents with regard to his car over the past couple of weeks, when it was stolen on two occasions. I extend my sympathy to him in that regard. My interpretation of the position is, and I am advised, that if there is a contract of service there can be no exclusion. Therefore, the authorities of the car park mentioned would be liable in the case outlined by Senator Lambert.

Senator Harte described the NCAC as having no teeth and can they be given more powers. The NCAC are an advisory body representative of trade, consumer and a general interest. Their primary function is to advice the Minister for Industry, Commerce and Tourism on legislation in the consumer field and on EEC proposals in that area.

A number of other points were made by various Senators. They will excuse me if I do not reply to each and every one of them at this stage but I will deal with them all on Committee Stage. When I mentioned the Committee Stage, there was an argument advanced by a number of Senators for a special or select committee. I have indicated my intention to introduce amendments which will meet some of the main objections the Senators have expressed in this Second Stage debate, in particular the most contentious element with regard to section 13 which I feel would have taken most of the time on Committee Stage and will still take some considerable time when we get to it. However, in view of the fact that I have come forward with the agreement to alter this contentious section and also the other points that I have indicated and my willingness to include amendments in Committee Stage in my own name, I feel that the Committee Stage could proceed in the normal way through the House.

One thing that I would like to mention on this Stage of the Bill is that Senator Harte, amongst other Senators, mentioned the fact that he hopes that this Bill will not be the end of the legislative road for consumers. I would like to assure this House that it is not the end of the road. Indeed that is one of the main reasons why we changed the Title of this Bill from the Consumer Protection Bill to the Sale of Goods and Supply of Services Bill in case anybody might think that when we put this Bill through we were going to put consumer legislation on the shelf for the next 90 years, as it had been for the previous period. Besides this fact, the second EEC consumer action programme is coming forward and this contains all sorts of proposals which when sorted out will give increased protection to consumers in such areas as health, safety, education and information. So, by no means have we reached the end of the road in consumer protection legislation. I see this as an on-going situation in the years ahead.

Finally, I would like once again to thank the Members of the Seanad for the warm welcome that they gave to this Bill. I look forward to a constructive Committee Stage debate.

Question put and agreed to.

An Cathaoirleach

Next Stage?

Mr. R. Burke

About three weeks at a minimum.

Mr. Alexis FitzGerald

I would like to ask what does "a minimum" mean? Not before?

Mr. R. Burke

Not before.

Committee Stage ordered for Wednesday, 12 March 1980.