Seanad Éireann debate -
Wednesday, 25 Jun 1980

Vol. 94 No. 11

Pyramid Selling Bill, 1980: Committee Stage.

Sections 1 to 3, inclusive, agreed to.

SECTION 4.

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

Mr. Molony

Subsection 4(2) which provides for the return of payments to participants in certain cases and certain conditions, seems to provide for a situation that should only be regarded as needing interference for a transition period rather than something that will always require attention. Perhaps the Minister could explain precisely what is intended, or the circumstances intended in subsection (2), because it seems to be more appropriate to a transition problem rather than a problem in the long term. Just to clarify the position: it provides for compensation for one of the parties where the value of the goods has deteriorated while in the participant's hands.

If we are serious about making this a criminal offence, we should not be out to compensate people who insist, in the future, in participating and promoting such schemes. The recipient, if I understand the definition correctly, is either the original promoter or the person who promotes next to the participant himself. He is the person who received the money, he has handed on goods for it. He is participating in an illegal activity. This section proposes to enable the money to be paid back and the goods to be returned, but where the goods have deteriorated the promoter should be compensated. It is completely against public policy that such a person who is insisting on engaging in criminal activity should be compensated in this way. I would ask that it be removed. Maybe I misunderstand the purpose of it.

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

The Senator is referring to section 4(2). It would be contrary to natural justice, regardless of the "desirable elements and the undesirable people" we mentioned, to expect repayment in full if the goods or articles being returned are damaged because of negligence of the person looking for the refund. There is no provision in the Bill for deciding how much should be deducted for damages. That is another awkward point. It is left for agreement between the promoter and the participant in the first instance, and it is open to them to let a court decide any issue. This is the beginning. A participant is alive, goods are another matter. I can see the point the Senator is raising and appreciate his anxiety to punish anyone involved in it, that not alone should they be fined but they should also pay through the nose as regards the goods. I wonder if such a clause would hold up.

Mr. Molony

When the President signs the Bill it becomes law. In those circumstances someone who was engaged in this practice may say he will give you back the money if the goods are returned. That is fair enough but if the goods have been damaged through the fault of the participant he should pay compensation to the promoter. What we are talking about is a transitional problem. Take the situation which may develop in five years time where a promoter, despite the fact that it is a criminal offence, persists in engaging in this criminal activity. It now appears he is to be compensated. That is completely against public policy and it astonishes me that we should enact such legislation.

So that Senators will not misunderstand my concern about this, if somebody strikes a bet with a bookmaker he cannot use the courts to recover if the bookmaker decides not to honour his obligation because we do not regard that as a type of activity that should be protected by law. The law of contract which determines that particular matter is clear in this respect. I have always disagreed with the view, I think it is wrong, but nevertheless that is the way it is. For example, a man who uses girls and lives on their immoral earnings cannot go to court to recover money that one of them has kept, as he would see it wrongfully, from him as it is against public policy that that type of activity should be condoned in any way. There are several analogies and several examples in the law that stand on this type of subject. Here, we are not only saying that the contract is not recognised by law; it is actually a criminal activity. Yet, we are setting up our courts system to assist such a person. I think it is outrageous and it should be removed from the Bill. I certainly want to table an amendment to remove that section from the Bill and I ask for time to do it.

Ruairí Brugha

What is meant in subsection (2) of section 4 by "a decrease in value of the goods"?

Mr. Meaney

They were damaged and only worth perhaps quarter of their value. Senator Molony is hinging his argument on the recovery of payment. Is that correct?

Mr. Molony

It is allowing the courts to be used for a contract that is not recognised by law and is a criminal activity. We are facilitating the criminal to recover money. It is contrary to any legislation or any law that exists on the subject. It is a new departure and it astounds me.

Mr. Meaney

We have laid down the fines in other sections.

Mr. Molony

Let us take it at the first stage. People decide to start off this chain of pyramid selling. They go along with, let us say, cosmetics and they present the cosmetics to the first layer of people. Of the ten people who are retained or participate in the scheme let us say that two of them, through their own neglect or otherwise, damage the goods. The promoter of this has engaged in criminal activity. His contract is illegal and the Bill provides, if I understand section 4, for redemption to the participant, the person who was "conned" into this. He goes back and says, "I am giving you back the goods and I want my money back". He wants to get out of the situation. The law will actually facilitate the promoter in giving him a cause of action against the participant. I think that goods belonging to a promoter engaged in this type of activity should be confiscated. The Bill does not do that and I will ask that it go that far but I object that the administration of justice, the system that we have in Ireland that is already without sufficient resources to fulfil the reasonable and legitimate demands of the public, should be used to recover the illgotten gains and assets of a criminal. That is exactly what this subsection is doing.

Mr. Meaney

Legal advice is still that the criminal is entitled to justice. Everybody in court is entitled to justice, is that not right? We all have to recognise that.

Mr. Molony

I would not agree with the Minister's approach to this. I do not think we should set up a structure within the State that is going to facilitate the commission of crime. That is what we are doing, one way or another.

Mr. Meaney

That is not so. If the promoter and the participants cannot agree in the first instance it is open to them to let the courts decide what to do. There are several cases in law where people who are criminals have applied to have certain goods restored to them. We read about them every day in the paper. The court is there to decide.

Mr. Molony

The court is under an obligation at that stage to assess the amount of compensation and to make an order paying it out to the criminal.

Mr. Meaney

The court at that stage can assess the damage to the goods. That is the law of the land.

Mr. Molony

I can assure the Minister that this is a completely new departure. I do not believe that it is contrary to the principles of natural justice that a criminal be deprived of property that he is using to perpetuate the crime. I do not accept that there is any constitutional problem involved in this at all.

Mr. Meaney

I have said it is open to the people to let the courts decide. Is the Senator saying that the house of a criminal should be confiscated?

Mr. Molony

No, but there are circumstances in which it could be done. I will give the Minister an example. If a person engages in, let us say, spear fishing and uses his car for the purpose, his licence can be taken from him. That is an example. The confiscation of property is quite a different thing although I do not think it would be a bad thing if property used in the commission of a crime like this were confiscated. I am not asking that we go that far but I am objecting to the fact that our courts system can be used by a criminal to recover property which he has given away in the commission of a criminal offence. That is exactly what we are doing and it is wrong. I would urge the Minister that at least the matter be postponed and that we be given time to consider this most serious departure from everything that is known to the law and the application of public policy to the law. I ask the Minister that this matter be left over until tomorrow, that we be given time to consider it. We have had very few people in the House today to deal with this matter. I certainly was not aware of this until I got this Bill this afternoon. I am extremely concerned about it; it is against public policy and it is just the type of example that I was referring to earlier when I said that rushing legislation through the House is most undesirable. I would ask the Minister to give this matter time for reflection.

Mr. Meaney

A criminal has rights. If a person is convicted for illicit distilling of spirits, the still is confiscated but they do not take his house.

Mr. Molony

I am not asking for confiscation. I have given the Minister examples. It is just like the pimp who cannot use the court system to recover money from a prostitute; just as the person who has a bet with the bookmaker cannot use the court system to recover money from a bookmaker. That is a very innocent activity and is recognised as legal. I am sure there are Members of this House who go to race meetings and strike bets. The person who has a bet on a horse cannot use our court system but the criminal can do so under this legislation. It is highly objectionable and I would ask the Minister to give us time to reflect on this.

Professor Conroy

The criminal is entitled to use the courts system.

Mr. Molony

Will the Minister quote me any precedent in our law already for this? Will he not accept that this is a completely new departure? Will he not accept that there is a principle in common law going back a long time that where it is against public policy to allow somebody to use the courts the courts have the right to refuse a person access to justice in those circumstances? Here the courts will have no such right because it is a statutory right that is given to the criminal.

Mr. Meaney

The Senator has several times quoted the Gaming Acts and referred to betting with the bookmaker. That is a completely different type of legislation. Under the Gaming Acts the person who places the bet or the bookie does not have to pay. Is that correct?

Mr. Molony

We are doing the opposite here. We are setting up a base on which a criminal can fight a case in court. Let us forget about our source of law. The precedent that I want to use is the principle of common law that the courts cannot be used where it is against public policy that the courts should be used. That is the base of my argument. Let us just compare what is just and what is not just. The criminal is entitled to justice. Even under the Gaming Acts, is it wrong if it stops a bettor from suing a bookmaker? If the legislature decided that as a matter of policy he should not be allowed access to the courts, who has got the better case to recover money through the courts—the bettor with a defaulting bookmaker or the convicted criminal under this legislation? Would the Minister offer a view on that?

Ruairí Brugha

The Senator has a great advantage over this side of the House with all his legal knowledge but I wonder if he is overlooking one point. There are physical goods involved here of a value.

Mr. Molony

Money has its value, deteriorating as it is——

Ruairí Brugha

There are physical goods here of a value and they belong to the person being charged. He may owe for them. There may be contracts involved.

Mr. McGowan

I agree with the points made on both sides. It is essential that the Bill be seen to be fair because at the end of the day we will have to deal with real situations, with fairs and markets and agricultural produce. People will be on the borderline of being charged and we need the courts to decide what is fair and what is not fair. We will have to say to the public that this is a fair Bill and that it is in the interests of the general public. I think that the best way to prove that beyond doubt is that any man who is charged and who has committed an offence has access to the courts and that the courts will decide.

Mr. Cranitch

Senator Molony in his brilliant discourse stated that a person who lays a bet cannot bring an action against a defaulting bookmaker and he gave that instance in support of his argument. If a betting man cannot bring a case against a defaulting bookmaker to my mind more is the pity. I do not think justice is being done there. It would appear to me that in this Bill the section under discussion is making an effort to see that justice will be done, and for that reason we should accept it.

Mr. Molony

I did not advert to the problem raised by Senator Brugha. It is just a difficulty we have when we are trying to disgorge legislation a rate of knots that we should not tolerate. There is a better solution to the problem. There should be a provision in this legislation to enable the court that is charged with the issue of the criminality of the matter to have the power to confiscate the property and dispose of it as it thinks proper, considering who has the right of ownership and dealing with it in that way. That would be just and it would certainly deal with the situation where a party has the property but where they have a commitment on it, either having bought it or having committed themselves to passing it on to somebody else. That would deal with the situation. What we are doing here is different. We are creating a separate civil action for the criminal to pursue a separate action in court. That is quite a different thing.

This legislation is legislation that we were given this afternoon. I accept it is not the Minister's fault, that there were delays in the Dáil. I accept that the system that allows this to happen is wrong. I have raised a point which I think has merit in it. I accept that there are difficulties involved, and that to create just legislation and legislation that will work—I accept Senator McGowan's point on this—it must be seen to be fair. This is a new departure that is contrary to our existing policy, that runs against precedents that exist for years not only in statute law but in common law. The section should be looked at again with a view to its repeal altogether, or certainly its removal, and the provision of some other section in the Bill providing for disposal of property and giving the court that deals with the criminal aspect of it the right to determine rights of ownership. I accept that we are disagreeing on this point.

Mr. Meaney

This Bill was printed in January 1980 and this is June 1980.

Mr. Molony

We were considering many matters in January 1980.

Mr. Meaney

The Bill was printed six months ago. There is very little change in it. People say they did not get it until today but they could easily have got it and their amendments could have been down here. I do not care what legal aspects the Senator introduces. A person may be looking for a refund and the criminal may be convicted. Is it right that the person concerned could strike a match to £1,000 worth of goods and say "here goes"?

Mr. Molony

I have given an alternative which I think is a fair one.

Mr. Meaney

I am asking the Senator if the aggrieved person has a right to strike a match to that criminal's goods and say "here goes"?

Mr. Molony

We have no law at the moment. We are enacting legislation that, in my respectful submission, is defective. I accept that there are problems involved in this. If the Minister cannot undertake to review the matter I certainly will undertake to look at it and see whether I can draft an appropriate amendment to this legislation but, to do that I require time. I will not apologise to the Minister or to anyone else for not studying this legislation when it was published first in January. We have had a lot of work to do. We do the best we can. This Bill was not published in its present form until this afternoon. The reality at the moment is that I have raised the point. In relation to any other Bill that goes through this House we would be allowed time. I gather that this House will be sitting again next week and, ask for more time. I am prepared to argue my case, but I want time.

Mr. Meaney

We have had enough time and discussion on this. We have made our points very clear and I cannot see how this subsection left as it is is going to interfere with the working of the Bill, how it is going to create a new precedent or how it is going to affect justice as we know it in the country. I am asking that the House proceed with the Bill.

Mr. Molony

I am asking for time. I am disgusted at the Minister's last remark.

Mr. Meaney

I am anxious that we go through with this Bill.

Mr. Molony

The Minister has said that this problem first arose seven or eight years ago, that the Bill was first drafted then. It was presented to this House an hour ago in its present form. It is an offence to the dignity of the House that when we request an opportunity to consider an amendment in which there is merit we cannot be given a week. Even 24 hours, anything at all, to let us consider this matter will do. The Minister is being unreasonable if he insists on stuffing it through this House now.

Mr. Meaney

The Bill was printed five or six months ago. We have discussed this matter at length. I accept we have different views on it.

Mr. Molony

The Minister is going to use the majority he has in this House, most of whom are not here and who are going to be called from their constituency work or from committee meetings around the place, to march through the lobby. None of them has heard the discussions we have had here this afternoon. I am asking for time to consider an amendment so that at least I can have it circulated so that Members will know exactly what we are talking about. The Minister is denying me that opportunity, and I object.

Mr. Meaney

That is not so.

Mr. Molony

The Minister is denying me the opportunity to circulate an amendment. I think it is a reasonable request and I ask for it.

Mr. Meaney

This is very short notice.

Mr. Molony

I am asking the Minister if he will accept an amendment from me and allow me time to draft it and have it circulated.

Mr. Meaney

I am satisfied with subsection (2) as it is.

Mr. Molony

The Minister is not prepared to accept any amendments? It is not fair.

Mr. McGowan

The Senator is being unreasonable. Everything depends on how the Bill is implemented. Certainly there are going to be areas where there will be disputes and they will have to be settled in the courts. We must have a reasonable and a fair approach if the Bill is to work.

Mr. Molony

Make an alternative provision.

Mr. McGowan

I think the provision is right. Even though the offending party may be a criminal the legislators and the Government in this case have got to be seen to be fair. Otherwise it will not succeed in the courts.

Mr. Molony

I do not accept that at all. I am just as concerned about the justice and fairness of this legislation as anyone else. I accept that the removal of this subsection completely would not meet all the needs of the situation. That is why I am asking for time to propose an alternative amendment that can be considered by Members. I am offended that the Minister has taken the point of view that he has taken. We have complained already today. Members on all sides of the House have recognised the problems that we were presented with. We are not laying the blame for that at anybody's door, but this is an example of a Bill being rushed through the House and a Member of the Oireachtas being denied an opportunity to have a considered amendment printed and circulated.

Mr. McGowan

That is unfair.

Mr. Molony

No. It is not unfair. Let us consider exactly what we are doing. I am asking for an opportunity, for time to prepare an amendment. I accept there are needs on all sides. I accept the points that Senators Brugha and McGowan made. I believe that that subsection is offensive to public policy and is a new departure in terms of our law, both statutory law and common law. I am asking for time. This House sits for three days next week. I am asking for time to consider an amendment, to draft it and to have it circulated. I am reducing this whole point to that one issue at this stage.

Mr. Meaney

I must be adamant on this. It was my reasonable approach to a spokesman of the Senator's party that was the reason for this Bill being three weeks late in coming here. I want to be quite clear on this. I am not rushing this legislation through at all. There are certain matters that we have considered in the Department. The Senator has made his points very forcibly.

Mr. Molony

To deaf ears.

Mr. Meaney

This is what democracy is about. This is what the different Houses are for, this is what an election is for. I am not going to wait until next November for the Bill because the simple reason is that I want to get rid of pyramid selling once and for all.

Mr. Staunton

Very briefly, I want to support my colleague by regretting that the Minister should state that he will not accept an amendment which might mean waiting until next November. In so far as the Order of Business in this House is concerned the fact is that for a very considerable length we have had very little legislation in the form of Bills coming from Dáil Éireann. We are now being forced in two, three or four days to go through a flood of legislation and apparently amendments will not be accepted because that might necessitate the Government waiting until November. It is unacceptable.

Professor Conroy

I have listened to Senator Molony's comments and his very able exposition of his views on this matter. Perhaps we all would like further time for discussion but we do not share his views on this Bill on this side of the House. The matter of pyramid selling is of very considerable public concern. We have had a full discussion on the matter. If it is held up now it is a question of holding it up at least until the autumn. Although one would like to facilitate the Senator it does not seem to be very practicable or feasible to do so, even though one appreciates greatly the comments and points that he has so ably made.

Mr. Molony

I want to emphasise one point, because I do not want to be misunderstood. I have objected to subsection (2) of section 4 but it is not simply a question of that. People from all sides of the House recognise that a problem existed. I want the opportunity to draft an amendment, and that is being denied me. It is unfair. I am reluctant to use the word but it displays an arrogance on the part of the Minister and I am surprised and disappointed to experience it. There are Members of this House who were not here for our discussions, who were engaged in other business. I am asking for an opportunity to get time to draft an amendment and have it circulated so that the point I have made can be considered. That is all I am asking—no more. The Minister may say that our colleagues in the Dáil delayed the matter for three weeks because they sought amendments. There is nothing wrong with that. It is their right and their duty, and is what we are being denied.

Mr. Meaney

I did not say that.

Mr. Molony

The Minister facilitated the Dáil for three weeks. Will he facilitate us for 24 hours? In fairness, in order to give me time to draft an amendment I would ask that this matter be postponed until next week but if the Minister, unreasonably, refuses that request I ask him at least for tomorrow, even though that will not be adequate for me to draft the type of amendment that I need to get over the problem and meet the requirements of fairness mentioned by several members of his own party. What the Minister is saying at the moment is this: he believes subsection (2) deals with everything. I say no. I want the opportunity to prepare an amendment, draft it and circulate it. He is denying me that opportunity and he knows that he is denying me that opportunity. It is wrong and unfair of him. I propose voting on that. It is not just that I object to subsection (2) but is also because I am being denied an opportunity to table an amendment. I feel that the privilege I have of being a Member of this House is being flouted.

Mr. Meaney

We are discussing here someone who has been found guilty of an offence, a criminal. What about someone who may be found not guilty? It is for the court to decide.

Mr. Molony

It is still a criminal activity.

Mr. Meaney

No. You go to the court, there are goods involved. Mr. A is found not guilty but the aggrieved party can take Mr. A to court even though he was found not guilty under the Bill outlawing pyramid selling. The court will have to decide. Up to now we have been discussing the case of a criminal but I am bringing out the case of where the person was found not guilty.

Mr. Molony

It is an ordinary contract and the person has ordinary rights.

Mr. Meaney

I mentioned the example of a person taken to court, prosecuted under our new legislation and not convicted. I put forward the case where there were still goods in question between two people, between A and B and where B wanted to recoup the goods. As the court decided there was not a criminal offence they have the right to go to court. We are saying that if there was damage by the party who was supposed to have committed an offence that should be considered and taken into account. There does not have to be a conviction. That is the point I want to make very strongly.

Mr. Molony

In those circumstances the law of bailment would come to either party's advantage. They would have the right to sue on the return of goods if there was damage done to them. That law exists already. This section may be designed for such a situation but there is a law of bailment which would amply cover the point expressed by the Minister.

Mr. Meaney

That is why all this is put into the Bill.

Mr. Molony

That point has just occurred to the Minister. It is the last shot up the sleeve and it has not impressed me. The point the Minister makes does not advance his cause one iota because the law of bailment deals with it. Perhaps the Minister is not familiar with the law of bailment, but it deals with it. I would ask the Minister to allow me time to draft the amendment which I have sought time to draft. The minimum amount of time will do me.

Mr. P. Reynolds

We are here a long time discussing this point. I can see nothing wrong with Senator Molony's point. Possibly the Minister is anxious to get the Bill through. He admits it was first issued in January of this year. All Senator Molony is asking for is time to circulate an amendment which can be debated here next Tuesday if the Government agree to it. I do not think it is an unreasonable request and I would suggest to everybody that it should be accepted.

Mr. McGowan

Senator Molony is unduly alarmed about this. You can change the words and you can put in double meaning words and you can describe it as you like, but the wording of subsection (2) is easy to understand. I would ask Senator Molony to be reasonable. It would be wrong to get carried away and describe some Bill or some section or subsection in legal terminology, because you have to implement it at the end of the day. With respect to Senator Molony, this can be discussed today and if he has a point to make——

Mr. Molony

I want time to draft an amendment.

Mr. Meaney

The Senator has made his point very well without any amendment. He can put what he thinks on record and we can differ on it.

Mr. Molony

With a feeling of utter despair I propose to stop wasting the time of the House dragging this out further. I have no intention of being unreasonable. Senator McGowan is saying that if I agree with subsection (2) I am reasonable. If I disagree with it I am unreasonable and I am unreasonable in seeking 24 hours—I would prefer a week—to draft an amendment to this. The section is a new departure and, when I get an opportunity, I will show how new it is. In utter despair at the arrogance of the Minister I will sit down.

Mr. Meaney

I resent that completely. I have not been arguing with the Senator. We have discussed it in a democratic fashion and we have disagreed. I want to make it quite clear that the provision does not facilitate the commission of a crime in one way or another.

Mr. Molony

What is wrong with one single week?

Mr. Meaney

If we delay for a week and if there are amendments, we could reach the end of the year very quickly.

Mr. Molony

So that is the reason we cannot have it—in case this House might pass an amendment. That is what the Minister has said. In case this House in its wisdom should determine that an amendment to this Bill is desirable the Minister does not want it taken.

Mr. Meaney

I am not prepared to yield on this section and the Senator thinks that is wrong. I want this legislation before we go into recess. I do not want it put back to the end of the year. It is about time we got rid of it once and for all. I have made my case; we disagree and that is that.

Mr. P. Reynolds

We have given the Minister the legislation. There is no doubt about that. In all my experience over the years I cannot recall any such request being refused by a Minister, no matter who was in Government. I have no recollection of it. Perhaps it did happen.

Mr. Meaney

Senators know the Dáil is going into recess. I do not want to be unreasonable.

Mr. McGowan

It is not often that Senator Molony would take a stand like this. One has to wonder is there a motive other than the one he is putting forward.

Mr. Molony

No. No motive in the world.

Mr. McGowan

All Senators want this legislation to be understood by those who will be charged under it. Senators want legislation to be fair and easily understood. It is totally unnecessary and unfair to say the Minister is being arrogant.

Mr. Molony

I should like to assure Senator McGowan that I have nothing to hide.

Question put.

The Committee divided: Tá, 24; Níl, 15.

Tá

• Brennan, Séamus.
• Brugha, Ruairí.
• Cassidy, Eileen.
• Conroy, Richard.
• Cranitch, Mícheál.
• de Brún, Séamus.
• Donnelly, Michael Patrick.
• Doolan, Jim.
• Ellis, John.
• Goulding, Lady.
• Harney, Mary.
• Herbert, Anthony.
• Hillery, Brian.
• Honan, Tras.
• Hyland, Liam.
• Jago, R. Valentine.
• Kiely, Rory.
• Kitt, Michael.
• Lambert, C. Gordon.
• McGowan, Patrick.
• Mulcahy, Noel William.
• O'Toole, Martin J.
• Ruttle, James.
• Ryan, William.

Níl

• Blennerhassett, John.
• Connaughton, Paul.
• FitzGerald, Alexis.
• Governey, Desmond.
• Harte, John.
• Howard, Michael.
• Kilbride, Thomas.
• Lynch, Gerard.
• McDonald, Charles.
• Molony, David.
• Moynihan, Michael.
• O'Brien, Andy.
• Reynolds, Patrick Joseph.
• Staunton, Myles.
• Whitaker, Thomas Kenneth.

Tellers: Tá, Senators W. Ryan and Conroy; Níl, Senators P. Reynolds and Harte.

Question declared carried.

Section 5 agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mr. Molony

On subsection (4), the compensatory fine or the piggy-back claim, I made the point that I felt it could possibly also be employed in the event of a conviction on indictment. If I heard the Minister correctly he said the danger was that the jury might be over-influenced by the compensation question. I wonder whether that could possibly be the case. I would have thought that this subsection, and the consideration of a compensatory fine, would arise on sentencing, in other words, on the fixing of a fine. Of course, that is not a matter which concerns the jury at all. It is entirely within the jurisdiction of the judge's functions. I want to stress that it has nothing at all, good, bad or indifferent, to do with the jury. Perhaps again, for that reason, the Minister might consider deferring the Report Stage of the Bill and if there is any merit in that point we can consider it.

Mr. Meaney

The Senator is discussing subsection (4). Is that right? It provides for several things really.

Mr. Molony

I made the point that the compensatory fine is limited to where a conviction occurs either in the District Court or on appeal to the Circuit Court but, certainly, where the matter is dealt with on a summary basis. I say where there is a conviction on indictment, it would be desirable to have it. The Minister says the objection to that is because of the fact that a jury might be involved and they would possibly be over-influenced by the question of compensation. My response to that is that surely this whole question of a fine is not a matter for the jury at all. The accused is convicted and consideration of the sentence or the amount of the fine is exclusively a matter for the judge and has nothing to do with the jury.

Mr. Meaney

The question of guilt has nothing to do with the jury. Is that right?

Mr. Molony

Of course not. I do not see what that has to do with enabling the court to include in its fine an amount to compensate the victim. The jury would know absolutely nothing about that. It would not be discussed at all. All that is being discussed in the jury's presence are the facts which would show that the accused had committed a criminal offence. On the conviction of that person, the court in deciding the amount of the fine it should impose, can consider using part of that fine, so to speak, to compensate the victim. That is a matter for the judge. It would never arise in the presence of a jury at all.

Mr. Meaney

Would not the jury be involved?

Mr. Molony

How?

Mr. Meaney

Why would they not? The point we are on covers convictions on indictment. Is that not right?

Mr. Molony

How would the jury be involved?

An Leas-Chathaoirleach

The Committee Stage of the Bill cannot proceed by way of an argument between the Minister and the Senator. The normal procedure of addressing the Chair will have to continue.

Mr. Meaney

The point is that the jury would be very much involved. Is not that correct? This is put down because they may be swayed by the question of compensation rather than the offence proper.

Mr. Molony

How?

Mr. Meaney

They are human.

An Leas-Chathaoirleach

The Senator and the Minister should follow the normal procedure of addressing the Chair.

Mr. Molony

Let us take the ordinary case where a larceny is committed on someone. Someone steals my car. I go to court and I give evidence of that fact. Is the jury influenced by anything more? They feel sorry for me, of course. Why would they not? If it were possible for the judge afterwards to say when he was sentencing the person convicted, "I would consider taking a certain course in relation to this matter if I understood you were to compensate the person from whom you stole the car," I do not think the jury would be influenced. If, on the other hand, in this type of situation where a person is charged with promoting pyramid selling and is convicted in the eyes of the jury, the jury, of course, will feel sorry for the victim, but how will that affect the question of compensation, of using part of the fine as compensation? The jury do not determine the amount of the fine.

Mr. Meaney

That is right.

Mr. Molony

Yes.

Mr. Meaney

It is a matter of compensation. Is that not correct?

Mr. Molony

Yes.

Mr. Meaney

That is the point.

An Leas-Chathaoirleach

The Senator should be allowed to speak without interruption.

Mr. Molony

It is a matter for the judge and not the jury.

Mr. Meaney

The jury are human beings. The Senator mentioned damage to the car, expenses, and so on. Is it not known that a person like that is fined heavily. There is the human element.

Mr. Molony

What in heaven's name does that have to do with the application of subsection (4)?

Mr. Meaney

The point about it is that it is only a very small matter in the Bill one way or another. Is that not correct?

Mr. Molony

Where a district justice imposes a fine of £500 he is given the power, under this section, to give £300 of the £500 to somebody who is conned out of £300. This right is not being given to a Circuit Court judge or a High Court judge. The amount involved here is £10,000. They can impose a fine of £10,000. If somebody has suffered damage to the extent of a couple of thousand pounds and the judge decides to impose a fine of £5,000, he simply orders that £2,000 be paid out to the victim of the damage. For the life of me I do not see what the presence of a jury has to do with that. That has nothing at all to do with humanity. I am sure juries are very human and have great humanity in considering these matters but, with every respect to the Minister, what he has said to me is utterly irrelevant. The jury will consider the facts of the case as presented to them. They will decide either to acquit or convict. If they convict the jury retire. Their job being done they leave and the judge may then decide to apportion part of the fine as compensation for the victim. That has nothing to do with the jury.

Mr. Meaney

The fear was that the jury would convict in the interests of securing a fine from which compensation would be paid. This is what is involved. I want to be honest with the Senator. This was the fear. This is why this section is there. We can argue about it until doomsday but it is a point that has been made very forcibly.

Mr. Molony

I disagree with the Minister.

Mr. Meaney

Is the Senator afraid it conflicts with the interest of securing a fine? It is different altogether here.

Mr. Molony

I have every faith in the juries.

Mr. Meaney

It will not upset the Bill.

Question put.

The Committee divided: Tá, 24; Níl, 13.

Tá

• Brennan, Séamus.
• Brugha, Ruairí.
• Cassidy, Eileen.
• Conroy, Richard.
• Cranitch, Mícheál.
• de Brún, Séamus.
• Donnelly, Michael Patrick.
• Doolan, Jim.
• Ellis, John.
• Goulding, Lady.
• Harney, Mary.
• Herbert, Anthony.
• Honan, Tras.
• Hyland, Liam.
• Jago, R. Valentine.
• Kiely, Rory.
• Kitt, Michael.
• Lanigan, Michael.
• McGowan, Patrick.
• Molony, David.
• O'Toole, Martin J.
• Ruttle, James.
• Ryan, William.
• Whitaker, Thomas Kenneth.

Níl

• Blennerhassett, John.
• Connaughton, Paul.
• FitzGerald, Alexis.
• Governey, Desmond.
• Harte, John.
• Howard, Michael.
• Kilbride, Thomas.
• Lynch, Gerard.
• McDonald, Charles.
• Molony, David.
• O'Brien, Andy.
• Reynolds, Patrick Joseph.
• Staunton, Myles.

Tellers: Tá, Senators W. Ryan and Brennan; Níl, Senators P. Reynolds and O'Brien.

Question declared carried.

SECTION 7.

Question proposed: "That section 7 stand part of the Bill."

Mr. Molony

On many occasions in the past when dealing with similar sections in other legislation I referred to offences in relation to bodies corporate. A servant, an agent, a director, or any person who is associated with a corporate body, through his mere neglect, may find himself guilty of a serious criminal offence. The section is in the form used by the Government down through the years. It would be fairer to everyone concerned to insert the word "wilful" before "neglect". A director who merely failed to read his minutes, and thereby became associated with the commission of a crime, may be unfairly convicted merely as a result of failing to do something. The neglect should be pitched at a different level, a higher level, and it should have to be wilful neglect rather than mere neglect. Perhaps the Minister might like to consider that between now and Report Stage.

Mr. Meaney

The purpose of the words "neglect on the part of the director or responsible officer", is to ensure that if his neglect is the real cause of the offence, he also should be liable. That is quite acceptable. With regard to the words "neglect" and "wilful", somebody once said nothing was a sin if you did not take enjoyment out of it. If an ordinary person has an unlicensed television set that is an offence. It could not be proved that it was because of his wilful neglect that he had not got the licence. It is enough that he neglected to take out a licence. I see no point in changing section 7.

Mr. Molony

I do not know what the Minister means by his reference to nothing being a sin unless you take pleasure in it. I do not understand that reference. The points he makes about the person who fails to get a television licence is quite a different matter. You are dealing in that case with the principal, the person himself. If you talked about the lodger in the owner's house and the owner had failed to get a television licence that person, perhaps through neglect, would be capable of being deemed to have committed a criminal offence, but the law is not designed that way. The law the Minister is referring to refers to the principal, the owner of the television set.

I am talking here not about a principal, but about a servant, or agent, or somebody who is merely associated with a company that engages, in this instance, in pyramid selling. A director of the board of that company may have failed to read a minute in which it was proposed to promote pyramid selling. The fact that he does not read the minute is nothing more or less than neglect. Had he read the minute and decided to go ahead, that would be different. It would be wilful neglect. He did not pursue it. He did not say it was wrong. I think this is unjust. I know that for years and years the establishment have used this hallowed device to cover offences in relation to bodies corporate. I do not really expect any change in it today.

Mr. Meaney

This section is common. The purpose of the words "attributable to any neglect" on the part of a director or responsible officer is to ensure that where his neglect is the real cause of the offence he also should be liable.

The subsection is in common form. The provision occurs, for example, in the Merchandise Marks Act, 1970, section 8, the Restrictive Practices Act, 1972, section 22, and the Consumer Information Act, 1978.

Many other statutes have in fact gone further in imposing criminal liability on directors and others. They go so far as to impose liability where the offence was merely "facilitated" by neglect. Examples are the Shops (Conditions of Employment) Act, 1938, section 6, the Auctioneers and Estate Agents Act, 1973, section 25, and the Employment Premium Act, 1975, section 7, and the Occasional Trading Act, 1979. It has, however, been accepted that such a provision goes too far and that formula is no longer followed.

I have to concede to the Senator that there are precedents for inserting "wilful" before "neglect". They occur always in the context of the phrase "facilitated by" evidently as a concession intended to mitigate the severity of that provision, a provision which, as I have said, has now been dropped. I am, however, advised that the word "wilful" is tautological in this context.

Neglect or negligence is in law a breach of a duty to take care, and where that breach of duty is the real cause of an offence primarily committed by the company or firm it is proper that the director or officer who caused it should also be liable. It is a matter for the court to determine the degree of his culpability and the extent of the penalty which should be imposed upon him. Accordingly, I cannot accept the Senator's views.

Question put and declared carried.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. Alexis FitzGerald

Who will operate this? What structure of administration will be responsible for seeing that these odious crimes are ended?

Mr. Meaney

It will be operated by our Department.

Mr. Alexis FitzGerald

It is not going to be part of the duty of the Director of Consumer Affairs?

Mr. Meaney

His jurisdiction covers very wide ground and when I say not specifically I hope the Senator does not misunderstand.

Mr. Alexis FitzGerald

There is an organisation planned for the pursuit of this?

Mr. Meaney

Yes.

Question put and agreed to.

Section 9 agreed to.

Title agreed to.

Bill reported without amendment.

An Leas-Chathaoirleach

When is it proposed to take Report Stage?

Mr. Molony

I do not agree that Report Stage of the Bill be taken now. In dealing with section 4 (2) I went to some pains to point out the necessity for giving the Seanad time to consider an amendment to that section. I am not going to go into that now except to say that we have been asked to deal today with no less than nine Bills, indecent haste on the Minister's part. I already had cause to use the word arrogant, and I regret to use it but I have to use it, and if he insists on this measure going through now his action is nothing else but arrogant. I have made a reasonable case. I accept that there were differences on it. All I ask is for time to prepare an amendment and to circulate it so that all Members have the opportunity to consider it. The House is sitting for three days next week and I ask that Report Stage be deferred to Tuesday.

Mr. Alexis FitzGerald

I add my voice to that of Senator Molony. Senators will excuse me for not following the substantial point that is in issue because I was at a meeting of a Joint Committee during most of the time of the debate so I cannot express any opinion on the matter except to note what Senator Molony said in an eloquent way. He is very learned in his and my profession, and his opinion should be heard with very great respect. It is a matter for the agreement of the House as to when to have the next stage. Senator Molony suggested Tuesday. If that is agreeable to the Leader of the House, it would give Senator Molony appropriate time to draft an amendment to a Bill which is in other respects entirely welcome, indeed overdue, but which contains a provision to which he takes great exception, and in respect of which he will propose an amendment to the House at Report Stage. I urge Senators opposite to continue the excellent feelings that there are between all Members of this House and to agree to give this side of the House time to do their duty and to allow the Seanad do its duty to see that the legislation which comes to it is properly dealt with.

I draw the Senators' attention to the fact that in Dáil Éireann it was noted by Deputies on the Government side that this type of crime has been going on for a very long time, since the sixties. Deputies on the Government side of the House claim to have been the first to have drawn the Government's attention to this in the sixties and have been pressing for legislation since then. The Second Reading of the Bill was given in Dáil Éireann on 22 May, approximately a month ago. It comes to us accompanied by other Bills. It is an important matter which affects the status of people and their rights. Senator Molony has made points that are substantial and serious with regard to one subsection of a section and is prepared to draft something which would meet it. The Minister's draftsman would no doubt be able to advise him as to the quality of the proposal from Senator Molony. Goodwill should maintain the business of the House and we should not, simply because we are coping with a lot of other business, say it might have come to us before now, that everything that we do here is absolutely pointless. We know perfectly well that if the Bill is enacted, if damage is done by this subsection, we will not be able to restore that damage, people will be injured by it. We know the public business is such that an amending Bill will be delayed as this Bill was, if Senator Molony is proved right in his view of what the subsection means. I urge the Senators opposite to agree to a reasonable period. I do not remember an occasion—there may have been one in my 11 years here, but I do not remember it—when stages have been forced through in the teeth of opposition. They have been rare enough for me to have forgotten them, which is an odd way of putting it, but it is normal to have these matters agreed, and I press for that agreement.

Mr. W. Ryan

If we do not take the Report Stage until next week it means that if we do accept amendments, the Bill cannot come before the Dáil again until perhaps late October. I do not know on which date the Dáil will be reassembling but it will be late October. Are you prepared to let things go as they are until then?

Mr. O'Brien

If there is an intention to deny the Seanad the opportunity of submitting or discussing in the proper way amendments to a Bill, just because the Dáil is on the eve of a recess, that is a most regrettable development and it is taking from the powers and functions of this House.

Mr. Meaney

I would prefer to stay on and get the Report Stage but I do not want acrimony with anybody if people are not willing to take it today. But I prefer that they would. I am determined that it shall be law by summer. That was urged on me in the Dáil by speakers from all parties and I promised it would be law as soon as I could possibly get it through. It takes time to get it through the Seanad. I do not mind when the Report Stage is ordered. When do you want it?

Mr. Molony

I suggest next Tuesday.

Mr. Meaney

I will be on a commission in the Department on Tuesday.

Mr. Molony

Perhaps Wednesday of next week then? We will be sitting for three days next week.

An Leas-Chathaoirleach

Is it agreed that the Report Stage be ordered for next Wednesday?

Report Stage ordered for Wednesday, 2 July 1980.