Before we commence I would remind Senators that Members may speak only once on Report Stage except for the proposer of an amendment who may reply to the discussion on the amendment. Also on Report Stage each amendment must be seconded. I call on Senator Kennedy and I also wish to state that Senator Costello's name has been included in this amendment.
Liability for Defective Products Bill, 1991: Report and Final Stages.
An Leas-Chathaoirleach
I move amendment No. 1:
In page 2, to delete line 20 and substitute the following:
"(a) death or personal injury, including consequential loss or damage sustained by the injured person, or".
This amendment proposes that damage should mean death or personal injury including consequential loss or damage sustained by an injured person. However section 1 (1) of this Bill in a major departure states that damage means only the following in regard to paragraph (a), death or personal injury without any reference whatever to consequential economic loss suffered by the injured person. The whole area of consequential losses arising from damage is, therefore, excluded and that is a very serious flaw in this legislation because it does not give it the clarity and the precision that is necessary.
Yesterday I indicated to the Minister of State, Deputy Kirk, who was deputising for the Minister of State with responsibility for marketing and trade, that there are some excellent provisions in this Bill spelled out with clarity and precision. However, in fundamental definition of the concept of damage it is lacking.
It is an inherent and basic principle of our law, and has been for many years, indeed centuries, that if damage is caused a person can get compensation for injury, for damage to property and for consequential economic loss. Thus, for example, a defective steering mechanism in a motor car may cause a car to crash and serious injury may result which causes a person to be out of work for a lenthy period of time. The consequential losses — loss of earnings, loss of the use of the car, etc. — are excluded because of the wording of this Bill. The word "damage" is used on its own and without any interpretation clause in this legislation. It includes a wide range of items: damages for personal injuries, for pain and suffering, for damage to property and for consequential and economic losses.
Consequential damages are not provided for in this Bill and it appears that all the judges can do under this legislation is to look at the definition of damages contained in section 1 (1) and decide if the injured person is entitled to damages. This matter could be effectively dealt with by the inclusion of the phrase, consequential loss or damage sustained by the injured person.
I do not think we are asking too much of the Minister of State. We have teased out this Bill as best we can in the presence of two Ministers of State. Opinions were given in the Dáil on whether pain and suffering is included. On one occasion, a former Attorney General indicated that pain and suffering was not included. Now in this House we are told that another Attorney General says that it is included and so on. What I am really asking for, therefore, is that the Minister would respond positively to this amendment.
What we cannot do in this legislation is to give the consumer less than is contained in the directive. The Minister of State has indicated that he feels this legislation must go through quickly because he is concerned about the European Communities and the action they have initiated against this country under Article 169 of the Treaty of Rome. It would be better to get the thing right and to achieve the clarity I referred to.
This matter was examined in great detail by two law commissions — the law commission in the United Kingdom and the Scottish law commission. Very briefly they summed up the situation in an objective way. They say first, that under existing law a person who sustains personal injury may be awarded damages under the two main heads, one in respect of pecuniary losses, the other in respect of non-pecuniary losses. Under the first head one is compensated for financial loss, such as loss of wages and out of pocket expenses. For non-pecuniary losses it is usual to award compensation on a more general basis for pain and suffering and loss of amenity resulting from the injury.
Second, the commissions state, it would be inconvenient procedurally if an injured person who wished to recover full damages had to initiate two distinct causes of action within the regime as recommended, one based on strict liability and the other based on rights in tort. I am anxious that we do not point to the negligence in tort remedy on one hand and to strict liability on the other; we should try to ensure unity of approach with regard to these two remedies.
The third and crucial recommendation of the Scottish and UK law commission is that compensation for death and personal injury should be assessed in the same way under strict liability as when the claim lies in tort and in particular non-pecuniary losses should be compensated. This means that compensation under the new regime of strict liability should be assessed as it is now done under the law of negligence and of tort and the plaintiff should be compensated in respect of non-pecuniary losses, such as loss of wages and so on.
It is true to say as Senator Howard indicated yesterday that this legislation because of a small number of deficiencies could lead to much litigation in the courts. I do not think it is good enough to rely on Minister Kirk's statement that these matters will be tested in the courts. We, as legislators, should be trying to keep these matters out of the courts and out of the higher courts in particular. Why should we take chances with legislation and risk it going into the High and Supreme Courts when we know the costs of proceedings in those courts? The ordinary consumer cannot afford High Court and Supreme Court costs in relation to damage or injury suffered as a result of defective products.
Litigation seems to be the art of making argument. Senator Howard indicated that undoubtedly, following the passage of this Bill legal energies will be consumed by lawyers trying to draw inference and importance from the discrepancy in definitions of damage between this Bill and the EC directive. Indeed, there is a difference among the definitions in the original directive and the final directive and the definition contained in the Civil Liability Act, 1961. Many cases, therefore, end up in the High and Supreme Courts because Ministers and Governments are not sufficiently responsive to non-political points made at the formative stages of legislation.
I hope the Minister will respond positively to this amendment. As he indicated in the other House, all wisdom does not reside on the Government side even on the best advice of the Attorney General. I, therefore, strongly urge the Minister of State to accept amendment No. 1 which will clarify this definition of damage which is the crucial aspect of this Bill.
I second the amendment and support fully the remarks made by Senator Kennedy. We have been over this ground at least twice, on Second Stage and on Committee Stage and perhaps we will cover it again while discussing the amendment on Report Stage. This amendment is probably the most important of all the amendments tabled because the provisions in the definition of damage in the Bill are at variance with what is said in Article 9 of the EC directive. The wording of the directive has been abandoned and we have ended up with legislation that restricts consumer rights to a greater extent than intended by the farmers of the directive.
It seems anomalous to establish one set of procedures for liability and then split the legal process and establish another set in the same area. We are dealing with what has heretofore been generally considered as a legal unit — damage covering personal injury, damaged property and consequential loss. Those matters have always been processed together under negligence, under the law of tort but now personal injury and damage to personal property will be covered by this legislation yet we will have a separate system for dealing with consequential loss in terms of earnings and perhaps in terms of pain and suffering. Why separate them? We have been trying to protect the consumer and now we are going to disadvantage the consumer by imposing on them two separate legal procedures. The first procedure will be strict liability, which is an improvement, but then the consumer must take action under tort and negligence to recover consequential loss of earnings, for example. I cannot understand why we should adopt this disunified messy costly and confusing procedure.
None of the arguments I have heard in favour of this course has been adequate. Senator Kennedy referred to a car mechanism which might prove defective and the resulting loss of earnings for somebody who would need hospitalisation and would be out of work for some time. There are numerous examples one could give, such as a defective light bulb, and we have not managed to expand the definition of electricity, although a defective light bulb could destroy a factory with the loss of earnings not only to a workforce but also to an employer. There are 101 examples we could give to prove the need to protect consumers against defective products.
Having shifted the burden of proof — evidence of damage will still be required of course — from caveat emptor to caveat productor, why should we split that again and say there is strict liability for a defective product in certain areas only?
We have always adopted a minimalist approach to implementing legislation from the European Community and the international arena. We should be improving this legislation in favour of the consumer rather than disimproving it as we are doing by invoking the proposed definition of damage. I ask the Minister to reconsider his position in relation to this matter.
Before I discuss the amendment I am conscious that the Minister was in the Public Gallery during the Order of Business and would have heard somewhat lighthearted references to the unusual title of an Iranian Minister he dealt with and to whom he referred yesterday in his speech. I assure the Minister that after he left the House there was a balanced recognition of his achievement of a successful deal with the Minister with the rather unusual title.
I want to be associated with those remarks. We are delighted to see that a deal for Irish beef has been made with Iran.
I am not being pleasant in the expectation that the Minister will relent on his continued opposition to the amendments being put forward from this side of the House, an attitude I regret. I assure the House that this side is anxious at all times to ensure that legislation is effective, positive and benefits those whom it is intended to benefit. In this legislation we have been constantly highlighting flaws. We have questioned with the utmost sincerity the potential of this Bill to benefit consumers. That is our overriding concern.
We ask the Minister in this amendment to accept a simple definition that damage means death and personal injury, and includes consequential loss or damage sustained by the injured person. We want to ensure that consequential economic loss will be covered by this legislation because it is not covered at present. Senators Kennedy and Costello outlined the loss of earnings which might arise from loss of a car, equipment or whatever. That type of consequential loss is not included in the legislation.
We have noted the confusion of views of two Attorneys General as to whether compensation for pain and suffering is included in the legislation, a highly unsatisfactory situation. As Senator Kennedy pointed out, if this legislation goes through without our amendment a person who has suffered loss or damage and wishes to recover consequential loss of earnings will have to undertake two distinct and separate courses of action in the courts. That is totally unsatisfactory and that situation could be resolved by the acceptance of our amendment. Without this amendment the legislation is flawed and will be of less benefit to the consumer than it might be. I cannot understand why it is not open to the Minister to consider improving the legislation by the inclusion of our amendment. I support the amendment and the arguments made by my colleagues.
This House in the past has amended legislation that passed through the Dáil, before arriving in this House in a cool, calm, less political environment than the Dáil we listened to each other. When I was on the Opposition side of the House Ministers of Senators Howard's and Senator Kennedy's party listened to me also and amendments were accepted. I agree with the points already made. We ordinary people outside the legal world — except for my colleagues Senator Kennedy — have heard the opinions of two Attorneys General which do not seem to concur. My concern about this Bill having passed through this House while I was a serving Member, would be that if, on foot of this legislation, a consumer found himself or herself in court faced with costs they could not afford, I would feel I had not done my duty here.
I have listened to the arguments for two days. There is no question of party politics in this but a deep concern for the general public. We are now into the final straight of this legislation, which to me was deeply complicated, and it was with the aid of the deep knowledge of my two colleagues on the other side of the House that I grasped it. As a Senator of 15 years I believe that the Minister, in the case of complicated legislation that will affect the general public, should be in a position to accept an amendment.
I would like to express my appreciation to Senator Howard and Senator Costello for their remarks in relation to the beef deal completed with the Islamic Republic of Iran. For clarification, the Iranian Minister who came here is the Minister for Jihad, which translates in English into the Minister for Construction Crusade. That Minister has been most helpful to this country and is responsible for the resumption of a major beef deal. It would be inappropriate if any comment made by a Senator would reflect on his very distinguished position in the Islamic Republic of Iran and on the assistance he has given to me, and fellow Ministers, when I visited the Islamic Republic of Iran.
I thank the Senators for their contributions and repeat that I have given careful consideration to the views expressed in relation to this important legislation. It may or may not be in order to say that any reference to certain types of legislation coming before this House should not refer to the Liability for Defective Products Bill, 1991 which is major legislation. I am not referring to comments made in relation to matters other than this Bill. I had the privilege of being here this morning and yesterday on the Order of Business and this House is being treated seriously by the Government with regard to this important Bill which could not be regarded as — and maybe I am misquoting — Mickey Mouse legislation.
Regarding this amendment, I can only restate what I said regarding a similar Committee Stage amendment. The definition of damage used in the Bill is entirely consistent with the approach contained in the definition of damage in section 21 of the Civil Liability Act, 1961. That Act is the principal statute governing liability in this country and the definition contained in it is as follows: "Damage includes loss of property, loss of life and personal injury".
The relevant section should be read in conjunction with section 2 (1) of the Bill which provides that a "producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his product". When examined in this manner the provisions relating to damage are sufficient to make applicable the domestic Irish rules concerning the assessment of damage including pain and suffering, consequential loss, etc, subject only to the limits expressly imposed by the directive which are reproduced in the Bill. In the Attorney General's opinion the definition of damage in the Bill would have this meaning even if section 2 (1) were not there or were drafted differently.
For the same reason it is unnecessary to reproduce in the Bill the last sentence of Article 9 of the directive which states that the definition of damage "shall be without prejudice to national provisions relating to non-material damage." It would be positively undesirable to do so as the effect of so doing would be to emphasise one domestic Irish rule concerning assessment and scope for damages to the exclusion of others which would be equally applicable, subject only to the limitations imposed by the directive, and would thereby risk causing confusion and uncertainty where none should exist. It is clear, therefore, that consequential loss or damage is already covered in the Bill and acceptance of this amendment would mean the unnecessary duplication of provisions which already exist.
I want to assure Senator Honan that this is the case and she need have no concern that this Bill in any way will disadvantage the Irish consumer. The directive is a harmonisation measure and thus we should do nothing to place Irish producers and manufacturers at a disadvantage particularly in export markets where 80 per cent of Irish production is now sold.
Senator Kennedy also referred to reports by two UK law commissioners. It is interesting in that regard that the definition of damage in the UK implementing legislation is as follows: damage means death or personal injury or any loss or damage to any property. Thus, the UK definition is almost identical to that used in this Bill. As Minister with responsibility for Trade, I will not put our manufacturers at any disadvantage in Europe in relation to this legislation. We have a major responsibility in this regard.
We are talking about consumers.
We have to balance the overall situation. I am satisfied under the 1961 Act that consumers' interests are well guarded and controlled. I regard my position as Minister with responsibility for Trade as being consumer-orientated because I have had the responsibility of attending consumer council meetings in Europe where I have protected the cause of the Irish consumer on many occasions.
I want to clear up any misunderstanding which may have arisen regarding the application of this Bill to compensation for non-material damage, that is, pain and suffering and consequential loss which is the kernel of this legislation. It has been teased out in detail in the Lower House and consequential loss has also been the main bone of contention in the Upper House. It was pointed out on Committee Stage that I had stated in the Lower House that pain and suffering did not fall within the scope of the Bill and that this conflicted with my statement to this House that such non-material damage was covered by the Bill. Damages for pain and suffering are not provided for in the directive but the definition of damage as defined in section 1 (1) of the Bill read in conjunction with section 2 (1) covers pain and suffering. We have dealt with that matter once and for all in this House and that is the situation in relation to this legislation. I rest my case on this issue. We have gone into this matter in minute detail and I accept that this is the proper approach to any legislation.
I agree with Senator Honan and I have already indicated in both Houses that where an amendment would improve a Bill I would be the first to accept it from any side of the House. I do not regard legislation going through this House as a political matter but as one of public interest. In that regard I accepted amendments in the Dáil yesterday which were put down by other Members of the House and supported by well reasoned and argued points. I would do the same also in this House but in this case I cannot because it is not in the public interest. After all the arguments put forward, I regret I am not in a position to change my view.
I thank my colleagues Senators Howard and Costello for the way they have argued our case here this morning and, in particular, I express my appreciation to Senator Honan who summed up our concern in a nutshell. I was hoping the Minister would be able to respond positively but he told me outside this Chamber — and he will not mind my saying it — that he is under pressure from Europe to have this legislation passed and he does not want it to go back to the other House. It is unfortunate that we delayed implementing this legislation for over three years so that the European Commission had to initiate proceedings against us under Article 169. We are now rushing it through and not doing the job we should do.
The Minister, on the advice of the former Attorney General, got it wrong in the other House, in regard to pain and suffering. He has now clarified the position and he says that pain and suffering is included in the scope of this legislation on the advice fo the new Attorney General. I am suggesting to the Minister that he got it wrong and Attorneys General have differed. He is a brave man to admit there was division of opinion but I find it hard to see how he got it wrong in regard to pain and suffering which is clearly included in the Bill. The definition in section 1 (1) clearly indicates that pain and suffering is included but there is no reference in the Bill to consequential economic loss. That is what I am concerned about and I suggest that if the Minister got it wrong regarding a matter in the legislation he may be getting it wrong now in regard to the very important matter of consequential loss. One of the leading authorities in this country in the consumer products area, Professor Alex of Trinity College, who is director of the Irish Centre for European Law, stated in a recent lecture that economic loss is not covered by this legislation.
The Minister referred to UK legislation; I suggested that the Minister was copying the UK legislation and it is not the first time we have copied UK legislation. The Minister is making my point but he has departed from the exact wording of the directive. If he was prepared to adhere and to bring forward his own amendment we would support it in substitution for our amendment. If he used the exact words of the final draft of the directive we would be happy with that.
The Minister implies that what he says in this House or in the other House will be looked at by the courts. There is no evidence that that is so. There are one or two cases, where for example, Justice Costello in a High Court decision involving a complicated area in regard to patent law, referred to an amendment he had proposed when he was a Member of the Lower House. That seemed a very sensible approach by a Member of the Oireachtas who wished to have an amendment accepted by the Government of the day. The Government of the day refused it for what they said were good reasons. When Justice Costello became a judge in the High Court he had to interpret this issue and he naturally looked at what he had said in the Lower House. In general, however, one could not have judges looking at all the extra-parliamentary material available; they do not do so. It has been suggested to me that barristers do this but that is not true either. They would not have time to go through all the material and memoranda associated with this matter.
I am very disappointed the Minister is not prepared to accept a well argued nonpolitical amendment, as Senator Honan has said. Somebody in the Department of Industry and Commerce is telling the Minister he cannot accept amendments here, no matter how good those amendments are. They want the legislation through and they do not want it to go back to the other House. We, on this side of the House, must press our amendment in the interests of the consumer.
Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 21; Níl, 16.
Tá
- Bennett, Olga.
- Byrne, Seán.
- Cassidy, Donie.
- Conroy, Richard.
- Fallon, Seán.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- McCarthy, Seán.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- O'Cuív, Éamon.
- O'Keeffe, Batt.
- Ryan, Eoin David.
Níl
- Cosgrave, Liam.
- Costello, Joe.
- Doyle, Avril.
- Hederman, Carmencita.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- Manning, Maurice.
- Neville, Daniel.
- Norris, David.
- Ó Foighil, Pól.
- Ross, Shane P.N.
- Ryan, Brendan.
- Ryan, John.
- Staunton, Myles.
- Upton, Pat.
Tellers: Tá, Senators Fitzgerald and E. Ryan; Níl, Senators Cosgrave and Neville.
Question declared carried.
Amendment declared lost.
Amendments Nos. 2 and 3 not moved.
I move amendment No. 4:
In page 3, line 6, after "soil," to insert "of hydroponic culture,".
In section 1 (1) of the Bill, the phrase "primary agricultural products" is defined as meaning "the products of the soil, of stock-farming and of fisheries and game, excluding such products and game which have undergone initial processing;". However, as I indicated on Committee Stage, the phrase "products of the soil" raises some very interesting questions in relation to the modern technique of hydroponics, which enables crops to be grown in vitamin-enriched sand and water. This matter was discussed in the House of Lords where Lord Radner pointed out that many vegetables, particularly cucumbers, tomatoes and lettuces are grown by a process known as hydroponics, where the one thing not involved is soil. As I indicated on Committee Stage, a ridiculous situation would arise if two cucumbers were exposed for sale and one fell outside the scope of this legislation while the other was inside it. I, therefore, think that, in page 3, line 6, after "soil" the phrase "of hydroponic culture" should be inserted or some such amendment made. Otherwise, the phrase "products of the soil" may well have to be interpreted, and interpretation may have to be stretched by the courts to refer to products capable of being grown in the soil, in order to extend the definition to cover hydroponically grown matter.
The Minister of State indicated on Second Stage that he would have this matter examined. I would urge him to accept this amendment or to propose an improved amendment of his own.
I second this amendment. I support what Senator Kennedy has said. This is a very useful amendment. It covers an area not covered by the definition of "primary agricultural products" and which needs to be covered because it reflects modern horticultural development where quite a number of horticultural products are now produced in a fluid rather than in soil. This is normal practice in County Dublin — in Lusk and surrounding areas — where market gardening takes place. Initially, although not always, products are grown in the soil and are then transferred to a nutrient — enriched fluid, which is water. They can also be cultured entirely in fluid. This amendment adds to the definition.
We have been so very slow in the introduction of this legislation that the developments which have taken place in horticulture have not been taken into consideration in the wording of the Bill. Primary agricultural products can be produced not in the soil, but by culture in a fluid which can be devoid of soil. I am not even talking about sand because it may be said that sand has elements of soil and soil has elements of sand. Horticultural produce is commonly produced in nutrient — enriched water. This section would benefit by the extension of the definition to include it.
I support the amendment put down by Senator Kennedy and seconded by Senator Costello. I am not prepared to say there is a flaw in the legislation but I put it to the Minister that a very obvious gap has been identified, where a certain type of product is not included in this Bill. It has been very clearly demonstrated that products produced from vitamin-enriched sand or water are now available and being used by consumers.
Legislation should never be brought in simply to deal with an immediate situation or envisaging only the immediate time span. Legislators must take account of developments they know are taking place and are being expanded. This is a typical case in which we are aware of new developments. Products produced by hydroponic culture will be available; I am reluctant, at this stage, to say they will be widely available but, clearly, it is possible that there will be widespread availability in a few years.
Having brought that very clear likelihood to the Minister's attention, is it not regrettable that we are bringing in legislation which will not take account of that development even though we are all aware of it. However forlorn my appeal to the Minister might be, his attention has been drawn to this situation. We cannot deny that these products are now available. We cannot deny that they will be available in ever increasing quantities in the foreseeable future. Why then does he refuse to include these products in this legislation when, obviously, they should be included? If we fail to include them the legislation will be only partially effective in achieving its proposed objective.
The science of hydroponics is the growing of plants in a water solution, with an appropriate mix of nutrients suspended in the circulating water. In other words, the process does not involve the use of soil. As can be seen from the relevant line which this amendment seeks to alter, the definition of "primary agricultural products" means, among other things, products of the soil. The directive, when referring to primary agricultural products, makes no mention of hydroponic culture. As this process does not involve the propagation of plants in soil I have no discretion to include such products in the Bill. However, because of the close relationship between hydroponics and conventional agricultural practice, it is felt it would be a matter for a court to decide if hydroponically produced goods are covered by the Bill.
As Senators mentioned, this matter was not included in the directive and was not inserted when it went through the European Parliament. We are not in a position to amend it, at this stage, even though I am prepared to consider the arguments put forward by Senators. Under this Bill a review of the legislation will take place every five years, and this issue will come up as part of the review.
The wording in this section of the Bill is identical to that in the directive — a course of action which the Senators opposite have constantly urged. No doubt the issue raised will be dealt with in any revision of the directive. The first revision in Europe is due in 1991. Other countries adopted this directive much earlier — it was brought forward on 25 July 1985 — and some of them should, therefore, have already had the five year review. The review may lead to amendment but, in reality, it may not arise. I have no discretion to change the directive even though the arguments put forward are reasonable.
In the circumstances, I cannot accept the amendment.
The Minister indicates on the one hand that he wishes to stick, precisely and exactly, to the words of the directive. If he had done that in so far as consequential loss and damage was concerned, we would have been very happy. Now, he says he has no discretion and that he must stick exactly to the words of the directive in regard to a practical matter, such as the definition of "primary agricultural products". The Minister has made my case because he has indicated quite clearly — and I agree with him on this — that this directive was open for implementation by member states as far back as 25 July 1985. Now, six years later, is the Minister seriously telling me that the European Commission, the Council of Ministers and the European Parliament would be seriously disturbed if he were to accept this amendment? As six years have passed, the Minister should be at the forefront in making such a change.
It is quite clear to me that he has instructions, perhaps from the more senior Minister for Industry and Commerce, Deputy O'Malley, that he is not to accept any amendments, however good they may be. He has not put forward any argument against this amendment this morning, other than that he has no discretion and must stick to the exact wording of the directive. Yet he departs in a major way from the wording of the directive when it suits him. Our amendment is very much in the interests of the consumer and the producer, and because of this we will have to press it.
Amendment put.
The Seanad divided: Tá, 16; Níl, 22.
Tá
- Cosgrave, Liam.
- Costello, Joe.
- Doyle, Avril.
- Hourigan, Richard V.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- McMahon, Larry.
- Manning, Maurice.
- Neville, Daniel.
- Norris, David.
- Ó Foighil, Pól.
- Raftery, Tom.
- Ross, Shane P.N.
- Ryan, John.
- Upton, Pat.
Níl
- Bennett, Olga.
- Byrne, Seán.
- Cassidy, Donie.
- Conrov, Richard.
- Fallon, Seán.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- McCarthy, Seán.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Keeffe, Batt.
- Ryan, Eoin David.
- Wright, G.V.
Tellers: Tá, Senators Cosgrave and Neville; Níl, Senators Wright and Fitzgerald.
Amendment declared lost.
I move amendment No. 5:
In page 3, to delete lines 19 to 21.
This amendment seeks to delete the following words:
(2) A word or expression that is used in this Act and is also used in the Council Directive has, unless the contrary intention appears, the meaning in this Act that it has in the Council Directive.
I move this amendment for two reasons. I consider the wording tautologous in that every word defined in the directive is defined in the Bill so the same ground is covered. I do not see why that is necessary. Then subsection (2) refers to "A word or expression" and "construing a provision" in subsection (3) is done in a different manner — it is done by the courts. The courts shall make the decision in terms of construing the provision whereas there shall be simply a reference to the Council Directive in terms of construing a word or expression. I regard that as a rather messy statement and I feel we would be better off without it.
Perhaps more important is the fact that we have reference to the directive in the Bill. That was very desirable in terms of our preparation for transforming the directive into legislation, but once a Bill is passed it becomes part of our domestic legislation and should stand on its own. It will cause unnecessary confusion if we have to refer to the interpretation that may be put on the directive.
We have just had a long argument and controversy over changes in the directive that have been introduced into legislation whereas the provisions in the legislation are less than the provisions in the directive in terms of the definition of damage. Since there is no reference to consequential damage, how are you to decide or what is the court going to do? Will it assess what the legislators intended in their definition of consequential damage, or will it try to interpret the minds of those who construed and compiled the directive?
The legislation must be independent. In construing the provisions of the legislation the court shall make a decision if there is a problem. There is no problem referring to the Council directive, but incorporating it as part of the legislation is probably undesirable. I would like clarification from the Minister in relation to it.
The Minister referred to my earlier remarks about Mickey Mouse legislation but what I was referring to there was the quantity, not the quality, of the legislation. I was referring to the corpus of legislation we had got since the beginning of this term, not to the quality of the legislation.
Is the amendment seconded?
Yes.
This is a standard provision in all legislation giving effect to Community instruments and, together with the subsection (3) of this section, is designed to ensure that in matters of in terpretation, precedence is given to the Community instrument over national law. I would again point out to the Senators that the EC Commission have had sight of this Bill. They are perfectly satisfied that it adds substantially to the legislation and confirms the precedence of Community law over national law. In the circumstances I cannot accept this amendment. I point out that since there is a precedent for this section in other legislation, which I presume was in this House, I would not be in a position to depart from that precedent. In the circumstances, I am not in a position to accept this amendment.
A further point of clarification. It may be my mistake but I am not aware of this precedent in terms of European legislation, at least not while I have been in the House. I wonder if it is in fact a precedent. I am not aware that it has been established practice or that it is a standard provision in relation to each country's domestic legislation for the implementation of European directives.
Acting Chairman
Before you sit down, Senator, you are aware this is the only reply you can make?
Yes, I understand. It certainly is not in the British legislation.
Acting Chairman
Have you completed your comments?
Yes.
I have nothing further to add. I have stated the position quite clearly. I have been informed that this is a standard provision in legislation that relates to the European Community.
Acting Chairman
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
Bill received for final consideration.
Agreed to take remaining Stage today.
Question proposed: "That the Bill do now pass."
I wish to thank Senators for their cooperation and assistance. I know there have been discussions about introducing legislation here. I certainly would be delighted to initiate legislation here because I have always had tremendous regard for the views expressed in this House and it would provide an opportunity to tease out a Bill in advance of the pressures that sometimes occur in the Dáil. Where I can, I encourage the initiation of legislation in this House.
I regret that, particularly on this occasion, I do not have as much flexibility as I would like, because, as Senator Kennedy said, I am under immense pressure from the EC in relation to this legislation which is long overdue, and we are also under certain legal pressure in this regard. We had to get this Bill through as quickly as possible. Nevertheless, I want to say that the views expressed are very worth while and when this legislation comes up for review those points will be taken into consideration by my Department.
Acting Chairman
Thank you, Minister. I am sure your views were much appreciated by both sides of the House.
I thank the Minister for listening to what was a fairly protracted debate on the legislation. I regret that he was unable to accept any of the amendments, but I am not blaming him for that. I regret also that the legislation was not introduced earlier but, again, that is not the Minister's responsibility. I thank him particularly for his remarks that he is anxious to see legislation initiated in this House. We all whole heartedly agree with that. Let us hope that the next time he is in this House he will be dealing with legislation initiated in the House.
Question put and agreed to.