This is no more than a technical amendment to insert in the Bill a definition of the word "agreement".
Consumer Credit Bill, 1994: Committee and Final Stages.
This is a definition of the term "APR". I indicated in my speech on Second Stage that APR is a term which is increasingly in public usage. In brief, one could say that APR is the true rate of interest. It means the total cost of credit to the consumer over the lifetime of the loan, expressed as an annual percentage of the money borrowed. I have endeavoured to come forward with a definition of APR which would be readily intelligible to consumers. The definition here — that APR means "the annual percentage of charge being the total cost of credit to the consumer expressed as an annual percentage of the amount of credit granted and calculated in accordance with section 11"— is, I think, the best that we are likely to come up with. It is a definition specified in the EU consumer directive of 1990 and refers to a mathematical calculation on page 99 of the Bill. If any Member of this House can validate the mathematics of it I will bow to them.
I am curious to know what the reasoning was behind the deletion of the words "comprises total repayments of interest and charges". I accept what the Minister is trying to achieve and I have no difficulty with the amendment he is proposing, but I am curious why that has been dropped from the Bill and why the Minister is doing it this way. I accept that we should have some clarity, which is consistent across the board, as to what is the true rate that is being paid and this is the way to do it. Sometimes people are not even sure what APR is when they come to repay their loans.
That is right.
This was the subject of a great deal of discussion in the Dáil. If you look at the relevant section of the debate in the Lower House, a number of different attempts were made to give a better verbal definition of APR. However, at the end of the day we had to ensure that the mathematical calculation, as set out in the formula on page 99, was given accurate verbal expression in the amendment.
There are issues that would apply to one section of the credit industry that might not readily apply elsewhere. For example, in money lending ought the cost of collection charges be properly included in the APR? At the end of that process of evaluation it was concluded that one could not depart from giving expression in words to the mathematical formula expressed on page 99. This is the closest we will ever come to being able to give that expression while at the same time maintaining its consistency with the EU Consumer Credit Directive of 1990.
It looks like an arch-physics formula so it does not surprise me that they cannot define APR.
I accept the concept but I am allergic to having mathematical formulae in the middle of this Bill. I know it must be used for calculation purposes, but the public need to understand APR. I hope this will never appear in the window of any bank or credit institution. There should certainly be another formula for the public. This worries me.
We cannot have two definitions in one Bill. It must be consistent with the Consumer Credit Directive of 1990 and it is probably the best we will get. Later we will discuss an important amendment which will give effect to the objective of uniform advertising. Senator Ormonde's point about whether a person understands it precisely is almost irrelevant because in all cases they will be comparing like with like.
Sections 98 and 120 of the current text of the Bill require moneylenders and mortgage intermediaries respectively to display, in a prominent position in any premises where they engage in the business of being a moneylender or a mortgage intermediary, a copy of their licence or authorisation. A similar requirement is being inserted in a later amendment relating to credit intermediaries. In order to avoid a photocopy being displayed and the potential this has for abuse, I propose in this amendment that the Director of Consumer Affairs shall issue a copy of the licence or authorisation specifically for display purposes. I will be tabling amendments to this effect later in sections 98 and 120 and the new section dealing with credit intermediaries. These amendments shall refer to the authorised copy of the licence or authorisation.
Apart from Part IX of the Bill, which refers to moneylending, authorised officers for the purposes of this legislation shall be appointed by the Minister or the Director of Consumer Affairs in accordance with section 7 of the Bill. However, in relation to the moneylending provisions of the Bill in Part IX only members of the Garda Síochána shall be authorised officers. As we know, illegal moneylending often brings with it wanton violence and gross exploitation, as has been referred to at some length in the House this morning. It is only logical therefore that in such circumstances the Garda will be the sole enforcement authority.
Amendments Nos. 5 and 6 are related and may be discussed together.
This is a technical amendment. The present definition of "borrower" in the Bill is confined to housing loan transactions, but the term "borrower" is now also used in Part IX relating to moneylending. In order to reflect this position the new definition specifies that a borrower is a consumer acting as a borrower. Also, arising from the insertion on Report Stage in the Dáil of the provisions relating to credit-sale, the term "buyer" was used for the first time. As in the case of "borrower" a "buyer" is defined as a consumer acting as a buyer.
This is purely a textual amendment to rectify an omission. As a result, the definition "collecting repayments" now means, in respect of a moneylending agreement, the collection of repayments in respect of the agreement at a place other than a business premises of the moneylender. It is purely technical.
This amendment is consistent with other amendments which I tabled on Report Stage in the Dáil entailing the deletion of the word "credit" from the definition of credit agreement. Therefore "agreement" will now be the term used in the case of credit, hire purchase and consumer hire transactions. We are merely replacing "credit agreement" with one term, "agreement". It is a technical amendment.
We have almost completed the insertion of new definitions. Here the term "company" is used in the Bill. However, until now it was not defined. This insertion therefore, which gives the standard legal definition for a company, remedies the omission. Again, it is purely a question of clarity.
The purpose here is also clarity. I want to make it quite clear that the reference to the account of the individual maintained by the credit institution or other person is a reference to the credit card account of the individual as distinct from any savings or current account which the individual may have. Senators will understand what is being got at here.
On Report Stage in the Dáil I introduced provisions which regulate credit-sale agreements for the first time. However, on that occasion the Bill did not contain a definition for a credit-sale agreement. I now rectify that omission and define a "credit-sale agreement" as a credit agreement for the sale of goods under which the purchase price of goods or part of it is payable in instalments and the property in the goods passes to the buyer immediately upon the making of the agreement.
In the course of amendments relating to advertising or offering of credit — Part III of the Bill — adopted on Report Stage in the Dáil, the term "financial accommodation" was introduced into the Bill. This amendment corrects the omission and financial accommodation now relates to all forms of credit and the letting or hiring of goods by means of hire purchase or consumer hire.
Amendments Nos. 13 and 14 are related and may be discussed together.
In the case of a hire purchase agreement, the goods pass to the hirer once the hirer has complied with the terms of the agreement. Therefore, the implication in the present text of the Bill that the goods may pass to the hirer is incorrect and is, on the advice of the Attorney General's office, now being rectified.
I wish to clarify that. Am I to assume therefore that at the end of the hiring agreement there is a statutory obligation to transfer the ownership of the goods?
Yes. The question of hire purchase is changed in the Bill. For example, if a person has made one third of the payments, the article secured under the hire purchase agreement cannot be repossessed by the credit institution without a court order. The implication of the Bill as it stands was that the goods may pass to the hirer, but this is incorrect. In the case of hire purchase the goods pass to the hirer once the hirer has complied with the terms of the agreement. It depends on the terms of the agreement because the distinction between hire purchase and consumer hire is that consumer hire is effectively leasing. In the case of hire purchase, depending on the terms of the agreement itself, one can get ownership at any stage along the process; but if they seek to repossess the goods and at least one third of the repayments have been made, they must get a court order.
I am still confused about ownership. I understood that it has changed. If one has paid one-third of the money, they cannot retrieve the goods. What happens if one has paid less than one-third? I would like the Minister to come in on that again. I am unclear and the public are unclear about the effect of that amendment. There is also the conflict of deferred payments. When does ownership pass to the consumer? Is the agreement workable? It has to be legal from the beginning. We cannot allow personal arrangements between the financial institution and the buyer in relation to the instalments. There is a clumsiness there, if I may say so. I would appreciate if the Minister would explain this again.
This amendment is providing against clumsiness. This is a technical amendment which cannot be taken in isolation from various other sections in the Bill dealing with hire purchase. One of the requirements of the legislation is that there must be absolute clarity concerning the terms of the agreement itself; the person who is benefiting from the hire purchase must have the terms of that agreement made available to him or her. As it stands the Bill states that the ownership may pass if the terms of the agreement are complied with. This amendment corrects that statement. If the terms of the agreement are complied with then the question of ownership is clear. That is the only change being made.
The term "partnership" is used in the Bill, but until now the term has not been defined. This self-explanatory amendment remedies that omission. It contains the standard definition of the term "partnership".
Does the Minister accept that this could have consequences for the present Government?
Amendment No. 16 is consequential on the proposal to delete section 49 of the Bill. With the agreement of the House, we can discuss the overall proposal at this point and have a further discussion on section 49 when we reach it.
I propose the deletion of the definition of "successive credit agreements" and also section 49 which deals with successive credit agreements. These were included in the Bill when credit agreements included hire purchase agreements. This is not now the case as successive hire purchase agreements are provided for separately in section 75. Credit agreements, such as cash loans, cannot be the subject of the provision in section 49 which provides that successive agreements shall be regarded as having revoked the earlier agreement and consisting of the combined terms of both agreements.
This amendment is not entirely removed from an earlier question Senator Dardis asked. The total cost of credit does not include any sums payable as a penalty, as compensation or damages for breach of the agreement. The purpose of this amendment is clarity. The underlying approach to the calculation of the total cost of credit is that the consumer will at all times abide by the terms of the agreement. Thus, to build into the total cost of credit any cost in relation to a breach which one assumes will not occur would be erroneous and is, therefore, now specifically excluded from the definition of the total cost of credit.
I see a potential inconsistency. In the Bill as passed by the other House it says the cost of collection is included. It seems that if the cost of collection is included the cost of these items will be included because they would be part of the cost of collection.
That is not right. As I understand it, this relates to circumstances where, for example, a lawn mower is bought under an agreement, the terms of which include a maintenance contract on the lawn mower. It would not be right to include that in the cost of terms nor would it be right to include the cost of any damages for which the buyer might pay as a result of breaking the blade. These are not the same as the cost of repayments. These penalties are separate and distinct from the selling and buying of the article itself.
The term "undertaking" is used elsewhere in the Bill to describe the person on whose behalf credit or mortgage intermediaries act, but the term "undertaking" has not been defined until now and this amendment does no more than rectify that.
The new and revised text of section 2 (2) for the first time refers to buyer and seller and lists the various parties to the agreement in the correct alphabetical order. It is purely a tidying up of what Senator Ormonde might say was a clumsy wording in the original section 2 (2).
The purpose of this amendment is clarity. It makes clear beyond all doubt that the Bill applies only to agreements entered into by consumers and not to anybody else and I am advised by the Attorney General's Office that it is necessary.
This is purely a technical amendment relating to the pawnbrokers legislation. Arising from amendments adopted on Report Stage in the other House, the Pawnbrokers Act, 1964, is now amended not alone by section 152 but also by sections 151 and 153 of this Bill. These three sections taken together comprise Part XV of the Bill.
The sale of goods on interest free credit is becoming more and more popular as a sales marketing technique. However, quite often the price of the product is inflated because of an in-built but undisclosed interest charge. This amendment means that sellers of goods who advertise such goods as being interest free are now covered by the Bill whereas, for example, the small shopkeeper who makes goods like bread or milk available on tick is not. It exempts the corner shop in that sense but provides for a situation where it is used purely as a marketing ruse.
The purpose of this amendment is to ensure that credit effected by means of credit cards is within the scope of the Bill. Section 3 sets out the application of the Bill and provides for certain exemptions, one of which is a credit agreement under which no interest is charged provided the consumer agrees to repay the credit in a single payment. This amendment will remove any confusion as to whether this exemption includes credit cards. It does not. Credit cards are covered by this Bill.
Section 4 deals with the functions of the director. It states: "The Director shall have the following functions for the purposes of this Act in addition to other powers conferred on him by this Act" and then lists the functions. What provision has been made for funding the office of the Director of Consumer Affairs so that it can implement this legislation? The means of the office are fully stretched at present. The Bill contains many diverse provisions and its implementation will put a great strain on the office. Why does the Bill not provide for funding the office?
I accept that significant additional functions are being conferred on the director and his office will require additional resources given the onerous nature of some of these duties. I accept Senator Kelleher's point. I gave a commitment in the other House that the staff in the office will be doubled in the next two years from 30 to 60 people, notwithstanding that a more rigorous public expenditure regime is anticipated for the next year and a half or so and I intend to honour that commitment. This is the essential ingredient to enable the director to discharge these additional functions, with an opening of a network of regional offices. Senator Kelleher will be pleased to hear I intend to proceed with opening an office in Cork at the end of the year.
Would it not have been possible to include in the Bill a provision whereby funding the office would be guaranteed? We all hope that the Bill, if passed, will be implemented and that the public will appreciate its positive aspects. The staff in the office of the Director of Consumer Affairs are stretched as it is and it is hard to see how even doubling the staff will be sufficient. This forward thinking legislation will put such a burden on the office's staff that I do not think, even with the Minister's commitment, that the legislation can be implemented in full to ensure the public is safeguarded by its measures. Is it not possible to insert a provision in the Bill to ensure that funding would be guaranteed as opposed to the Minister of State having to beg from the Minister for Finance?
I do not know if the provision of additional or specific resources is specified in legislation relating to any organisation, the functions of which are analogous to those of the Director of Consumer Affairs. If Senator Kelleher can give an example, I will stand corrected. I do not know, for example, if resources are specified for the Competition Authority or the Health and Safety Authority. I do not think it is the norm for such a provision to be enshrined in legislation and I am not sure if it would be desirable.
The director is in the best position to identify the type of staffing and expertise he needs and he should be given flexibility to do this. From my direct discussions with him, I do not think he is as concerned about the total number of people employed as he is about their skills and expertise. Parts of this Bill outline functions, the discharge of which will impose onerous responsibilities on him. The transfer of responsibility for monitoring bank transaction charges will impose on him and his office an unprecedented onus and will require people with the necessary expertise to match the firepower of the banks in this area. All I can do is give a commitment that these resources will be provided. I have no indication that the commitment that we won earlier from the Minister for Finance will be interfered with in any way.
From the discussions of the Minister of State with the director, what volume of extra work does he envisage as a result of this legislation? When the Bill is passed and the original early decisions are made, can we expect the financial institutions to go along with the new rules so that the office will not be faced with a large amount of work? Would it not be the norm that the financial institutions should implement the rules and regulations? Dealing with original queries should not result in an increase in the number of queries on a continuous basis. Will the Minister agree this should be the position?
I agree but I am not sure the big bad world will always operate in that fashion. Section 4 imposes specific additional responsibilities on the director, many of which will require him to demonstrate a proactive role. It is not a question of the financial institutions not complying with the legislation but that their compliance will require an informed response from — and investigations by — the director. It will require him to assess, for example in the area of bank charges, whether a commercial case has been made to permit increases in charges or new charges. His role in licensing the moneylending industry and his power of investigation under the legislation impose new duties on him which are not inert or which will be implemented merely by his acquiescence; a proactive role is being imposed on him.
The first area with which he will be concerned is the invocation of the sections dealing with the moneylending industry. This does not mean that all sections will have to be invoked at the same time but it may prove an intolerable burden on the director until he is up and running and we will have to look at this situation. I take the points made by Senator Kelleher and Senator Farrelly and I assure them it is my intention that, if we are conferring new powers and rights on consumers, the director will have the necessary resources to ensure they can vindicate those rights.
To ensure the Bill's provisions are eventually enforced, will the Minister agree that, if the Finance Act had not provided for a reduction in corporation tax or the abolition of bank levies, they would have been an ideal way of funding the Office of the Director of Consumer Affairs. I am sure that £40 million in bank levies and corporation tax would have adequately funded the increase in staffing levels necessary to ensure the legislation is enforced. This is not a political point. Would it not have been possible to impose a levy on institutions and those who apply for licences to be used to fund the office to help ensure the legislation is implemented in full? The director could not implement a quarter of this legislation, even if his staff is doubled or trebled, given the present level of resources available to him.
Why can there not be a provision for funding, such as a levy on the banks, which would guarantee resources to the Director of Consumer Affairs to ensure that this legislation will be implemented? Will the Minister explain that? If there are to be cuts in public spending, the Office of the Director of Consumer Affairs will be an easy target. It is a matter for the Minister of the day to argue on his behalf. While we appreciate the Minister's ability to argue his case, he might not necessarily secure enough funding to implement this legislation. It is not worth passing the Bill, if its provisions cannot be implemented.
Is there a possibility of guaranteeing funding? For example, people who apply for licences for moneylending could contribute a certain amount based on how much they lend. That should be ironed out so that the Office of the Director of Consumer Affairs has guaranteed funding. If we pass this legislation, the Director of Consumer Affairs will not be able to implement its provisions with the present resources.
The director assures me that the staffing provisions which, I repeat, are destined to double his staff complement from 30 to 60 over the next two years are adequate to discharge the additional functions he will have under the legislation. I accept what Senator Kelleher said that his office may be considered an easy target when cuts are contemplated in public expenditure, which the spokesperson in the other House argued trenchantly for. I cannot foresee the outcome of the Estimates process but I sincerely hope we will be able to protect this area.
I draw Senator Kelleher's attention to the fact that I am doing precisely what he asked. He asked for a levy on the banks and there will be a levy, if that is what he wants to call a rose by any other name, on all financial institutions, including banks, building societies and finance houses. If they decide to seek increases in existing charges or introduce new ones, they must submit a fee of up to £25,000 with that application. As regards the regulation of moneylending, a fee of £1,000 is sought with each application. Credit intermediaries must pay a fee of either £500 or £250, depending on the nature of the partnership which again will yield a not insignificant revenue.
As Senator Kelleher said, it is appropriate and proper that some element of contribution should be expected from the industry. I do not know precisely what it will be annually. We will need to look at that to some extent on the basis of experience but it will not be an insignificant contribution to the revenue cost of discharging the new responsibilities under this Bill. I agree with Senator Kelleher that it is appropriate that they should make a modest contribution and that is required under the Bill.
It is important that I welcome the provision in section 4 (3), that the director shall, not more than three months after the end of the year, present a report to the Minister and that two months later it should be laid before the Houses of the Oireachtas, which I am sure Senator Quinn would also welcome. Senator Quinn, on almost all legislation with similar provisions, has sought to have such reports produced speedily and he never understands why this cannot be done. I hope the Minister will bring this aspect of the legislation to the attention of his colleagues when they respond to Senator Quinn's amendments seeking the speedy publication of such reports.
On Second Stage we spoke about the need to provide information which people can readily understand in respect of the legislation and how it applies. While, as far as I can see from the Bill, it is not a duty of the director to provide that information — I may be wrong — perhaps it should be included.
It is a general duty on the director and it is included in the consumer Act introduced in 1978. Indeed, he has plans prepared to do precisely what Senator Dardis suggested. On the provision of the report within three months, I agree that is desirable. At present it is more than one year behind by which time some of its value is eroded. There is a specific statutory imposition here that it must be provided to the Minister within three months. The Minister, in turn, must lay it before the Houses of the Oireachtas two months later. That represent a definite tightening up in that area.
In the event of the director discovering that the financial institutions are charging over and above what they should charge, will he have the power to direct them to pay back the moneys or to ask them for a contribution towards running the office?
A financial institution, including a bank, may not proceed to impose a new charge or an increase in an existing charge unless it has been given the authority to do so by the director. The director may cause it to refrain from doing so unless it makes a case which supports the application. For example, a specific requirement is that it must be able to justify the application on commercial grounds. If it cannot do so, the director has the authority to cause it to refrain from imposing any increase and its application will not be looked at unless the relevant fee accompanies it.
Will the director investigate existing charges?
Charges at the time he takes over will be taken as read. Information must be provided to him about the position as of then. His powers relate to the future. There would be all sorts of implications if he were to reopen existing charges and so on. However, I hope that the effect of the new regime in this Bill will be that the financial institution may cause some of the existing charges to be reopened and restructured so that there will be fewer charges. I hope it will force a restructuring and a rethink and will discourage frivolous applications in the belief that they will be nodded through because that will not happen.
I do not want to reopen a debate in respect of the levies and I accept that the "industry" has a responsibility to contribute to some extent to the dissemination of information and so. However, I am uncomfortable about the multilateral spread of levies because the institutions do not pay them; their clients eventually pay them. There must be a balance.
There is a lamentable reintroduction of the "in relation to" disease in this Bill. When it comes to giving his report to the Minister section 4(3) states, "in relation to the performance of the Director's functions". Why can he not give a report "on" the director's functions? This "in relation to" business is appearing once more. It had disappeared to some extent in recent legislation; however, it appeared twice in the Title of a Bill the other day and today it is before us again. The draftsman who was on holidays for the past six months obviously has returned to haunt us once again.
The purpose of the amendment is twofold. The form and content of notice of statements required by this Act are already set out in the Bill. Therefore, the reference in section 6 to the form and content is unnecessary. Second, I wish to ensure that the director is being empowered to issue a direction as to the location and size of any statement or notice in the interests of better informing the consumer. In such instances, it is important that the director is enabled to issue a direction as he sees fit.
The amendment states that the director "may". The function of this amendment is to give the director full power to decide. He is not governed by this legislation because the section states that the director "may". Why is there no guideline whereby the director must or is forced to decide as opposed to "may" decide. What if the director does not see fit to issue a direction? The position of the director is being made fully independent outside of this legislation. It is up to the director to implement it — the director "may" do this and the director "may" do that if the director sees fit or if the director has enough funding. Why is it not provided in the legislation that the director "shall" as opposed to "may"?
The fact that the director "may" if he sees fit or if there is enough funding brings us back to the same problem. That is my concern about this Bill. There are no proper guidelines or provisions whereby the director must or shall carry out the task. I do not wish to detain the Minister on the nitty gritty aspects of the legislation but this matter is important. It refers to the basic problem of this Bill which is whether funding will be made available or may be made available.
I refer the Senator to section 4. There are specific and onerous imperatives on the director under that section. It is all governed by the use of "shall". It is important and correct that the director is independent in the discharge of his functions. It is quite proper that we should protect that independence and give the director discretion to act as he sees fit in respect of a number of matters that are not governed by section 4. That is what we are doing.
I realise that one cannot draw general conclusions from the discharge of his functions by the present occupant of the office. However, his performance has been praised on all sides of the House. To narrow his discretion could be counter-productive. The inclusion of the term "may" in this section is probably the appropriate flexible instrument to give to the director. He may, depending on the exigencies of any given circumstance, decide to use the power reposed in him under that section. In other circumstances he may decide that it is wiser, for whatever reason, not to do so.
The reference to the Minister exercising his investigatory functions is incorrect. Only the Director of Consumer Affairs has the power to carry out investigations of such practices or proposed practices where he considers that, in the public interest, such investigations are proper. The Minister may only request the director to carry out investigations and may not carry them out himself.
Amendment No. 121 is consequential on the deletion of section 9 and amendments Nos. 123 and 124 are related. These amendments may be discussed with the proposal to delete section 9.
Has the Minister any comment to make?
Senator Dardis is more alert than he indicated on the Order of Business. It is proper that I comment on this.
I am proposing the deletion of section 9 dealing with credit intermediaries by means of a new Part XII to the Bill. This amendment is concerned with new regulatory provisions for credit intermediaries. It also provides that the director shall have the power to suspend or revoke a credit intermediary's authorisation, a power not included in the present section 9. I will now deal with the new provisionsad seriatim which are similar to those introduced by way of Report Stage amendment in respect of moneylenders' licences and mortgage intermediaries.
Subsection (1) provides that, subject to an exclusion in subsection (2), a person shall not engage in the business of being a credit intermediary unless he is so authorised by the director and he holds a letter of recognition from each undertaking for which he is a credit intermediary. Under subsection (2) a person who is authorised under section 101 to collect repayments on behalf of a moneylender is exempt from having to have a credit intermediary's authorisation. Subsection (3) states that a holder of a credit intermediary's authorisation must only engage in the business of being a credit intermediary in the name specified in the authorisation.
The form and content of an application for an authorisation is set out in subsection (4). The applicant must state his true name, his business name and address and the name of any undertaking for which he intends to act. The application fees of £500, in the case of a company or partnership, or £250, in the case of a sole trader, are set out in subsection (5). These fees will be used to fund the director's office and assist him in carrying out his functions under this and other legislation.
Subsection (6) is a standard legislative provision and provides that the application fees referred to in subsection (5) may be varied by regulations. The life of an authorisation is set out in subsection (7) at 12 months. Subsection (8) specifies the content of the authorisation. Similar to the contents of the application form, the authorisation shall state the true and business names of the intermediary, his business address and the name of each undertaking for which he acts as an intermediary.
The grounds on which the director may refuse to grant an authorisation are set out in subsection (9) and include failure to have a letter of recognition from each undertaking; conviction for a criminal offence during the previous five years; being the holder of a bookmaker's licence or a licence for the sale of intoxicating liquor, a gaming licence, a pawnbroker's licence or a money-lender's licence; failure to provide a current Revenue tax clearance certificate; not being in the opinion of the director a fit and proper person to carry out the business of being a credit intermediary and failure to comply with regulations under subsection (10). Subsection (10) provides for the making of regulations requiring an intermediary to effect a policy of professional indemnity insurance.
In subsection (11) conviction for a criminal offence during the time of holding an authorisation, becoming the holder of bookmaker's, liquor, gaming, pawnbroker's or moneylending licences and contravention of regulations made under subsection (10) shall now be grounds on which the director may suspend or revoke an authorisation. Subsection (12) corresponds in large measure to subsection (8) of deleted section 9. It extends the provisions of that subsection to director's suspension or revocation of an authorisation. Consequently, where the director proposes to refuse to grant an authorisation or proposes to suspend, revoke or vary the terms or conditions of a current authorisation, he must notify the applicant or the holder of the authorisation, as appropriate, of his proposal. Such applicant or holder is entitled to make, within 14 days of receipt of the notification, representations to the director in respect of his proposal.
Subsection (13) provides that, if having considered any representations made under subsection (10), the Director decides not to grant the authorisations or decides to suspend or revoke an existing authorisation, he shall notify the holder or the applicant of the decision and the grounds on which he has based his decision. The holder or applicant may, within seven days of receiving the notification, appeal the decision to the Circuit Court within whose circuit the business to which the authorisation relates is to be carried on. The provision of subsection (14) replaces subsection (12) of deleted section 9. Any notification made under this section from the Director must be delivered personally or sent by pre paid registered post to the business address of the credit intermediary or applicant.
Section 15 provides that where the notification refers to a refusal to grant a second or subsequent authorisation, a suspension or revocation of an authorisation, such refusal, suspension or variation shall take place upon the expiration of the seven days allowed for the appeal. Subsection (16) provides that pending the determination or withdrawal of an appeal against the Director's refusal to grant a second or subsequent authorisation or his decision to suspend or revoke an existing authorisation, the refusal, suspension or revocation shall take effect and any authorisation shall continue in force until the appeal is finalised.
Section 17 provides that the Circuit Court may confirm the Director's decision to refuse to grant, suspend or revoke an authorisation or to allow the appeal. Where the appeal is allowed, the Director shall grant the authorisation or shall suspend or revoke the authorisation as the case may be.
Am I correct in assuming that where there is a suspension and an appeal, the suspension stands until the appeal is heard?
I welcome this because it would otherwise be open to somebody to hold up things in the courts long enough to ensure they could continue carrying on their operation.
There is an error in the printed list with regard to amendment No. 26. Amendment No. 26 should read: "...before "APR"...", rather than "...after "APR"...". Amendments Nos. 26 and 27 are related and both may be discussed together.
In addition to your advice on amendment No. 26, a Leas-Chathaoirligh, in page 20 of the Bill, section 10 (3), line 43, the word "the" should be inserted before "...APR...". Similarly with section 11 (3) (a), the word "The..." should be inserted before "APR...".
These are technical amendments and have no significance other than that the relevant words were omitted.
There is an error in the printed list with regard to amendment No. 27. Amendment No. 27 should read "...before "APR"...", rather than "...after "APR"...". Amendment No. 27 has already been discussed with amendment No. 26.
I have the advice of the Attorney General in respect of this amendment. I propose the deletion of subsection (8) which allowed the Director of Consumer Affairs to agree in writing the manner of calculation of APR. The vesting of this power in the Director, which arose from an amendment on Committee Stage in the Dáil is contrary to the provisions of the EU Credit Directives and, accordingly, I am advised that it must be removed.
We are indebted to the Attorney General.
Amendments Nos. 29, 30, 31 and 32 are related and all may be discussed together. There is a correction to the printed list. The last reference to the footnote to the amendment should read "...124..." instead of "...125..."
I exchanged views with Deputy Dardis on these amendments this morning. Their purpose is merely to codify the various offences and to distinguish between those that are offences on summary conviction and liable to fines of up to £1,500, and offences under amendments No. 29 and 30, sections 121, and the new section 149, and to make the alteration and falsification of a mortgage or credit intermediary authorisation an indictable offence.
I do not have any objections to the amendments primarily because I do not understand them. I understand that the Minister conceded earlier this morning that these provisions are especially opaque. I sometimes suspect that these provisions are inserted to generate work for lawyers over an extended period of time because one would need to be an eminent senior counsel to deal with them. It is difficult to understand what is at stake here for the ordinary person. It underlines, once again, the need for explanation and clarification for consumers.
The matter of offences should be very clear to people. If people read the Bill they will not be aware whether an institution or a licence holder has committed an offence or what the nature of the offence is. It is completely confusing. I am aware there are technical reasons the proposed legislation should be presented in this way. However, is it not possible to lay out in simpler language, the offences that could be committed by an institution? At present one would need to be an eminent senior counsel to understand the provisions of the Bill.
Senators are reposing too much importance on section 13. Senator Dardis correctly takes the view that it is a section for lawyers. It provides a handy ready reckoner of the offences that may be committed under the Bill. It does no more than specify the various sections, contravention of which will result in an offence. For example, a money lender applying for a licence must comply with certain conditions. If he does not do so and misrepresents the position an offence is committed.
Conditions apply to be authorised as a credit intermediary. An offence may be committed if the position is misrepresented. The aim of this section is to codify and make a distinction between summary offences and indictable or serious offences. Section 13 cannot really be considered in isolation from the rest of the Bill. It draws it together and is a handy ready-reckoner to contravention of specific sections which is an offence. It is not designed for the consumer. It is designed, as a section, to codify all sections.
The general criticism about the need for clarity in legislation still stands. I think the Minister actually accepts that. However, I am not aware of another way to deal with this other than the way it is dealt with in the section. In other words, we must refer to the nature of the offences listed in the various sections of this Bill and there is no need to consult other legislation. The criticism is a valid one. Having made it, however, I have to accept that the offences must be listed somewhere with information on how to deal with them. The latter is dealt with in the subsequent section.
The confusion in this section relates to placing the onus on the director to point out offences. If offences under this legislation were clearly laid out, it would be easier for a consumer to identify when an offence was being committed. They could then report to the director who could take the appropriate action. However, under this section it is the consumer's direct responsibility to identify an infringement. The legislation is so confusing there is little chance of the consumer ever doing so.
Would it not be possible to explain this in clearer language? It is up to the director, or a person with an eminent legal qualification, to spot where an offence has taken place. If the language of the legislation were clearer, a consumer reading it could identify when an offence was taking place and report it to the Director of Consumer Affairs. Otherwise the Director of Consumer Affairs is the watchdog. Without any shadow of a doubt, the best watchdog of all is the public. I do not think the public can interpret this legislation or point out where an offence takes place or what is an offence.
I suggest that very few members of the public or consumers would refer to the Act for guidance. I have had to read the Bill too frequently in recent times and it is not something to be kept in the attic for bedtime reading. It does not make easy reading. The Senator is correct about the public's need for information. However, they will get that information from the leaflets being produced by the Director of Consumer Affairs which are written in intelligible English. With the exception of that rare breed the eminent senior counsel, people with access to this legislation would not be much the wiser for reading it. The information will be contained in the leaflets. That is the correct place for it.
This amendment deals with the prosecution of offences. Consistent with the thrust of the Bill I am now proposing that any summary offence other than an offence for contravening the moneylending provisions be prosecuted by the director rather than by the director or the Minister. In relation to an offence under the moneylending provisions the Garda may prosecute summarily.
Amendments Nos. 34, 35, 36 and 37 are related and may be discussed together.
As a result of the amendments made to section 15 in relation to the bringing of summary prosecutions, the references to the Minister in section 16, relating to the cost of prosecutions, "or the Minister or the Director, as the case may be" are superfluous. Accordingly, these incorrect references are being deleted.
We will not ask the Minister to explain why he wants it deleted.
Section 18 provides that no action or other proceedings shall lie or be maintainable against the director or any other person arising from a failure to perform or comply with any of the functions conferred on the director or any other person by this Act. On the advice of the Office of the Attorney General, such a wide immunity provision may be open to judicial review. I propose to limit it to instances of wilful neglect or default. I am convinced that the present director carries out his function in a most conscientious manner, as will all future incumbents of the office, but to avoid any constitutional challenge on the basis of a restriction of citizens' rights or on the power of the courts I am advised this amendment is vital. I propose to delete the reference "or any other person" in lines 41 and 43. These deletions are necessary to avoid any misinterpretation or abuse of the section particularly if the references were taken to mean a creditor or owner, which was never the intention.
Amendments Nos. 39 and 40 are related and may be discussed together.
I believe the Minister has already explained the amendment.
Yes, I believe I have.
This is a technical amendment which specifies those sections of the Bill which shall not apply to the various categories of credit or hiring agreements entered into before the commencement of the Act. Subsection (2) provides that the Hire Purchase Acts, 1946 to 1980, shall continue to apply to any hire purchase agreement or credit sale agreement made before, and in force, when this Act commences, because various parts of the Act may be brought into force on different dates. The correct reference in respect of hire purchase agreements is "Part VIII" which is now being inserted in place of the words "this Act".
This amendment makes clear that this part of the Bill, relating to advertising and offering credit, shall apply to the provision or the arrangement of credit, hire purchase and consumer hire. Subsection 2 provides a specific exemption for credit unions from these advertising provisions. Senators will be aware that credit unions are not covered by this Bill but will be the subject of extensive new draft legislation, which I intend to introduce later this year.
Acceptance of this amendment involves the deletion of section 22 of the Bill.
Section 22 deleted.
Amendment No. 45 is consequential on amendment No. 43 and, therefore, amendments Nos. 43 and 45 may be discussed together by agreement.
I indicated on Second Stage that I intend that the APR shall be the only rate of interest which may be shown or referred to in an advertisement. The amendment provides that an advertisement containing a reference to a rate of interest must contain a clear and prominent statement of the APR.
This statement of the APR must at least be as prominent as a statement of the repayment period, the amount of any advance payment or the fact that no such payment is required, and the amount, number or frequency of any other payment, charges or repayments.
Will the Minister clarify what constitutes an advertisement in the Bill? Is an advertisement something that is made available to the public on a hoarding or in a newspaper as opposed to a leaflet in a bank? Will a leaflet in a bank constitute an advertisement? I may have missed this issue. Will the Minister clarify the meaning of "advertisement" because a bank could give misleading information?
I had forgotten whether we had put in a specific definition. We have in section 2(1) on page 9 of the Bill, part of which reads:
"advertisement" includes every form of advertising, whether in a publication, by television or radio, by display of notices, signs, labels, show-cards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way, and references to the publishing of advertisements shall be construed accordingly;
This is a clarification amendment, further amending section 23. It is a drafting amendment which clarifies its intent. Where the availability of credit is indicated in an advertisement and that credit is subject to restriction, those restrictions must be indicated clearly in the advertisement.
Section 24 deals with advertising the availability of credit for goods or services. It provides that the cash price, the total cost of credit, the number and amount of instalments, the duration of the intervals between instalment payments, the number of instalments which have to be paid before delivery of the goods and details of any deposit payable must be included in the advertisement.
This amendment replaces the reference to "credit" with the wider term "financial accommodation" which is defined as including credit and the letting of goods.
This amendment is consequent on the previous one, which replaced the word "credit" with the words "financial accommodation". I am now making it a specific requirement for advertisers to state the nature of the financial accommodation on offer; for example, cash loan, hire-purchase or consumer-hire. This transparency is important as consumers are often confused as to what credit product is on offer.
This amendment takes cognisance of the fact that the total cost of credit is meaningless in the context of a hire-purchase agreement. The critical and salient point of information is the hire-purchase price, which is defined in section 68.
There are two reasons for this amendment. Section 25 is no longer necessary in this part of the Bill because of the changes to the definition of housing loans on Report Stage in the Dáil. Section 25 provides that a warning notice to the effect that the consumer's home is at risk if payments on a mortgage, or any other loan secured on it, are not kept up must be included in any advertisement for the availability of credit other than a housing loan. As a result of Report Stage amendments, any loan secured by the consumer on his principal place of residence is a housing loan and, therefore, subject to Part X.
In place of the deleted section 25, I propose to insert a section dealing with the advertising of consumer-hire agreements. The provisions of this section are currently contained in section 93, whose deletion I am also proposing. The new section, which sits more correctly within the advertising provisions of the Bill, states that an advertisement for the letting of goods under a consumer-hire agreement shall include a statement to the effect that the agreement is for letting, hiring or leasing of the goods and that the goods remain the property of the owner.
Sometimes the question of title or ownership to the goods is not understood by the consumer or brought to their attention by the owner. Subsection 2 provides that any figures relating to the amount payable by the hirer be clearly displayed and be fully inclusive of all amounts payable, including taxes. Under subsection 3, the fact that any figures indicated are payable for part of the agreement only must be clearly indicated in the advertisement.
I accept the spirit of the amendment as it is desirable to have these sort of specifications. One of the things that strikes me — and I wonder if the Minister has given consideration to it — is the question of matters being clearly displayed. On both occasions, in subsection 2, the amendment states: "... those figures shall be clearly displayed...." and, again, in subsection 3, it states "...clearly indicated in the advertisement". Will the type of advertisements we see on televisions — I am thinking, particularly, of ITV where one would need a spyglass to read the small print at the bottom of the screen — conform to what is said in the Bill, i.e. "clearly displayed"? Is that "clearly displayed"? In my view, it is not. Is there any specification as to what a clear display is?
"No" is the answer. That would not constitute being "clearly displayed". I refer the Senator to amendment No. 24, which states that the director may, in the interest of better informing consumers, by such means as he sees fit, and subject to this Act, issue a direction as to the location and size of any statement or notice required under this Act.
I think that meets Senator Dardis's fears.
Acceptance of this amendment involves the deletion of section 25 of the Bill.
Section 25 deleted.
Amendment No. 50. Amendment No. 51 is related. Amendments Nos. 50 and 51 may be discussed together by agreement.
Section 26 requires that where an advertisement purports to compare repayments or costs under one or more forms of credit, it shall contain the relevant terms of each form of credit advertised.
These amendments replace credit with the wider expression "financial accommodation" which includes credit and hiring and clarity is their purpose.
Section 27 prohibits the advertising of credit as being without charge if the availability of credit is subject to a consumer concluding a maintenance contract, insurance or other condition likely to involve the consumer in any cost additional to that payable if the goods were bought for cash.
Subsection (2), which provides that the cost of such maintenance contract, insurance contract or other condition be specified, is now being deleted.
Amendments Nos. 53 and 54 are related and may be discussed together.
The first part of the amendment deletes section 28 (2) which requires the creditor to ensure that where a person other than the creditor displays, publishes or causes to display or publish credit advertisements, such advertisements comply with this Part of the Bill. The wording of the new section 29 imposes the same obligations on the creditor but uses the words "financial accommodation" in place of "credit" and identifies the other person as a credit intermediary.
Subsection (2) of the new section 29 replaces subsection (4) of section 28 which is now deleted and goes on to describe the defences available to the creditor where the advertisement placed by a credit intermediary does not conform with this part of the Bill.
Acceptance of this amendment involves the deletion of section 29.
Section 29 deleted.
The effect of this amendment is that ministerial regulations made under section 30 (1) may amend or modify section 23, which deals with advertisements indicating the cost of credit, section 24, which concerns the advertising of credit relating to goods or services, section 25 now inserted, relating to the advertising of consumer hire agreements, section 26, comparative advertising, and section 27, advertising of credit as being without charge. These new powers will allow for speedy intervention and installation of new protection for consumers as circumstances warrant.
Amendments No. 57, 58, 59 and 60 are related to amendment No. 56 and all may be discussed together.
Senators will notice there is one section only in Part III dealing with form and content of credit agreements. Part IV follows with sections 32 to 41 dealing with requirements relating to credit agreements and contents thereof. For the next print of the Bill this Part will become one covering sections 31 to 41 inclusive. Subsequently, the following Parts will be reduced by one.
Section 32 lays down general requirements relating to contents of credit agreements. The first effect of this amendment is to relieve creditors of the obligation of having to send the agreement by registered post, which would be onerous and expensive, and could also, in certain circumstances, be to the disadvantage of consumers who would be out at work when the post was being delivered.
The references to "owner" in line 11 and to "moneylender" in line 19 are being deleted as they are incorrect and are being replaced by the term "creditor". The reference to "other than credit card account" is also incorrect. These requirements would not be appropriate in the case of a credit card account. The words "granted by a credit institution" are, therefore, superfluous.
We note the corrections announced by the Minister and I will direct the Clerk to have the corrections made.
This is purely a technical amendment to section 33 which deals with the contents of credit agreements for cash loans. Credit card accounts are covered by subsection (2) and the nature of the requirements which are geared for cash loans only is given in subsection (1). This amendment seeks to clarify the intent that subsection (1) not apply to credit accounts.
In recognition of the fact that loan approval may be given well in advance of the drawing down date, that is, the date the consumer requires the cash, I propose this amendment to section 33. This will not prevent lenders from saying, for example, "Available from 1 July" or something of that nature.
This is to correct an error in section 34 which concerns requirements relating to credit sale agreements. As with other credit agreements the correct reference should be "the total cost of credit" and not "the total purchase price".
This is for clarification to avoid any misinterpretation as to the nature of the services to which the section applies. Section 36 relates to services such as the fitting of kitchen presses or PVC windows. It does not cover any financial services.
Amendments Nos. 65 and 66 are related and may be discussed together.
This is purely a technical amendment which corrects the omission of the word "and" between paragraphs (b) and (c).
Amendments Nos. 69 and 69 are related and may be discussed together.
Section 38 provides that credit agreements other than an overdraft facility must contain the notice set out in Part I of the Third Schedule. The notice shows consumers at a glance the full intent of the financial commitment they are undertaking. Amendment No. 68 excludes credit-sale agreements from having this form of notice as it cannot apply to an agreement, obviously for the purchase of goods. The requirement of the notice refers to instances where cash is advanced as cash loans and not to an arrangement whereby the total cost of credit is paid in instalments.
Amendment No. 69 is a standard legislative provision which provides that the Schedule may be amended by ministerial regulations.
This section provides that the Minister may make regulations in the form and content of agreements and in doing so may amend or modify Part IV of the Bill or Part I of the Third Schedule. The purpose of the amendment is twofold. Firstly, having in the previous amendment provided that the Minister may amend the notice in the Third Schedule, this reference now becomes superfluous. Secondly, on the advice of the draftsman, rather than referring to Part IV in its entirety, I am now specifying those sections which can be amended by regulations. They are those that deal with the form and content of credit agreements.
What provisions guarantee the rights of the guarantor? The Bill is basically about the consumer, but do any provisions protect the guarantor? In many cases, a guarantor may be requested to sign a document making them liable for substantial sums of money. Are there provisions in this Bill for the protection of the guarantor as there are for the consumer? Is there a difference between the guarantor and the consumer?
That question does not relate to this section, but the same requirements in terms of clarity and transparency, as applied to the consumer, will also benefit the guarantor. For example, section 32 provides that a copy of the agreement must be provided to the guarantor. There are also arrangements that the guarantor may not be penalised for more than the outstanding cost of the credit agreement. The rights of the guarantor are included in the Bill, not under this section.
Section 41 provides that a creditor shall ensure that a credit agreement to which he is a party complies with the provisions of Part IV. I wish to clarify that the "creditor" encompasses credit institutions, moneylenders and any person whose business or trade is or includes the sale of goods or the supply of services.
Under the provisions of section 46, where a consumer, being a party to two or more agreements with the same creditor or owner, makes a payment which is not sufficient to discharge the amount due under all the agreements, the consumer shall be entitled to appropriate the payment between the agreements as he sees fit. If the consumer does not divide the payment, the creditor or owner may then appropriate the payment as he sees fit. Subsection (2) provides similar provisions where all the credit agreements are hire purchase agreements. However, due to an amendment tabled on Report Stage the term credit agreement no longer includes hire purchase agreements. For this reason, I now propose that the word "credit" be deleted.
Under the provisions of section 47, creditors or owners are prohibited from sending to a consumer any written communication relating to a credit agreement unless that communication is sent in a sealed envelope, having nothing written or printed thereon other than the name and address of the consumer and, at the discretion of the sender, the word "personal". This restriction, however, takes no account of undelivered or misdelivered post. The appearance of a post office box number and the instructions "If undelivered, please return to" will avoid the circumstances where someone will have to open the envelope to establish the identity of the sender. The consumer's right to privacy is thus further strengthened.
Amendment No. 74 is a Government amendment. Amendments Nos. 75, 76, 77, 78 and 79 are related and all may be discussed together.
The wording of section 50 is the product of amendments adopting and arising from the Committee Stage debate in the Dáil. As a consequence, the present text contains a number of unintended anomalies and this amendment is designed to remove them. Under the present text, the only agreement in which the rate of interest could be challenged in the courts would be a moneylending agreement, but the first and only arbiter of rates of interest for moneylending shall be the Director of Consumer Affairs, in accordance with the powers given to him under Part IX of the Bill. In these circumstances, it would also be anomalous that a consumer or a person acting on their behalf could apply to a court of competent jurisdiction to have the rate of interest judged to be excessive. Any rate fixed by the Director would be determined only after the most detailed and painstaking scrutiny and this consideration should be accorded due weight in designating the court in which the interest rate could be challenged. Thus, the amendment provides that the reference to the director making application to the court is being deleted as are the references to court or court of competent jurisdiction. Also, the court action must take place in the Circuit Court area in which the consumer resides or where the agreement was concluded. The words "collection of" repayments are being substituted by the more appropriate term "collecting".
I move amendment No. 79(a):
In page 35, between lines 24 and 25 to insert the following new subsection:
"(5) In any case where the application under subsection (3) is made by a consumer or a person acting on the consumer's behalf the court shall not make an order without first affording the Director the opportunity to be heard on the matter."
The Minister has already gone a long way in cleaning up this section as regards the provisions about the Circuit Court and so on. This is a slightly different aspect, but it is within the context of the powers given to the Director of Consumer Affairs which have been considerably strengthened under the legislation. Section 50 (3) states that "The Director, a consumer or a person acting on the consumer's behalf may apply to the court of competent jurisdiction for a declaration that the total cost of credit provided for any credit agreement is excessive." It would then seem appropriate that if a consumer or a person takes an action, the court should consult with the Director of Consumer Affairs or he should be given the opportunity to be heard on the matter because he would have expertise in this area and his view would be important. It would be remiss if the court did not take that view fully into account. I am not saying I would like to see this wording in the Bill, but I strongly recommend the spirit of the amendment.
I am indebted to the Consumer Credit Association of Ireland for bringing this matter to our attention. It has discussed other issues with the Minister and it appears from the amendments brought forward that several of its concerns have been addressed. However, this one has not been addressed and that is why I recommend the amendment to the House.
I am persuaded by Senator Dardis' amendment. It is only logical that if a rate of interest has been fixed by the Director of Consumer Affairs, the court should hear the Director before it makes an order in the case. However, in terms of the amendments already passed, it seems that the Circuit Court is the relevant court in this case. If I am to ensure consistency with amendments Nos. 74, 75 and 80, I propose that the wording of Senator Dardis' amendment be amended by the substitution of "Circuit Court" for the term "court" so that it would be clear that it is the Circuit Court which is being referred to. If the Senator agrees, I am persuaded by his amendment.
I thank the Minister for his reply and I agree with his suggestion. I assume we can do that now rather than waiting for Report Stage.
The amendment is a consequence of the one immediately preceding it in that we have just adopted the reference to a court. It is being substituted now by the correct term, "the Circuit Court".
Amendments Nos. 81 and 82 are related and both may be discussed together.
This section concerns the making of demands or threats in relation to unenforceable agreements. In accordance with the present text, unenforceability arises by virtue of section 17. However, this section has already been deleted by an earlier amendment, therefore, the correct wording is "by virtue of this Act".
I move amendment No. 82(a):
In page 36, lines 12 to 14, to delete subsection (3) and substitute the following:
(3) In any proceedings for an offence under this section, it shall be a defence for the person to show that he had reasonable cause to believe
(a) that there was a right to payment, and/or
(b) that any failure to comply with a requirement of the Act as to form and contest of an agreement was not deliberate and has not prejudiced the consumer and that it would be just and equitable to dispense with the requirement.
Section 52 (3) states that "In any proceedings for an offence under this section, it shall be a defence for the person to show that he had reasonable cause to believe that there was a right to payment."
The amendment to section 52, which deals with making demands and threats in relation to unenforceable agreements, is similar to the existing subsection (3) which the amendment proposes to replace. The provision in paragraph (b) dealing with the "failure to comply with a requirement of the Act as to form and content of an agreement was not deliberate and has not prejudiced the consumer" is adequately covered by the enforceability provisions of sections 40, 62 and 88. Those sections already provide for such a defence in relation to credit agreement, hire purchase and consumer hire agreements.
I had this examined before I came to the Seanad because it was indicated to me in the other House. The combinations of sections 40, 62 and 88 adequately provide for an inadvertent situation, to which Senator Dardis referred. For example, part of section 40 states:
Provided that if a court is satisfied in any action that a failure to comply with any of the aforesaid requirements, other than section 32, was not deliberate and has not prejudiced the consumer, and that it would be just and equitable to dispense with the requirement, the court may, subject to any conditions that it sees fit to impose, decide that the agreement shall be enforceable.
Sections 62 and 88 are also relevant. I believe it is adequately provided for.
Section 53 refers to the consumer's right to a cooling off period.
It would not be out of line to provide for a cooling off period. The consumer may forego this right by signing a statement to this effect, separately from any other term of the agreement. In the present text the term "DOCUMENT" is used in error; it should be defined as "WAIVER". This is the first reason for the amendment. Second, the amendment provides that the cooling off period shall not apply in the case of an overdraft which, by its nature, is required by the consumer urgently to meet a pressing financial need.
An earlier amendment explained the impracticality of having to send other forms of agreement to the consumer by registered post. The same arguments apply in the case of hire purchase agreements and we are dispensing with the requirement to send a copy of the agreement by registered post.
With regard to the earlier provision, where the Minister said there could be nothing on the envelope but personal details, there is potential for difficulty. Would there be a problem under the legislation if it was a registered envelope?
We have deleted where possible the requirement that it be done by registered post. We have also included a measure whereby, if the letter is undelivered, it may be returned to a post office box number. This preserves privacy; for example, it is not stamped with the Educational Building Society or whatever, rather a post office box number. It goes as far as possible to strike a balance between maintenance of privacy on the one hand and unnecessary expense on the other. On reflection, some of the requirements for registered post are unnecessary.
I realise I am being pedantic and I do not envisage this arising in practice. I do not think anybody would pursue it but legislation is legislation. What will happen if there is "postage paid" on an envelope? Under the legislation, it strikes me one could not even put that on the envelope.
I suppose it means one could not send out invoices for one's business in Dáil envelopes.
Shudder the thought. That would never happen.
I agree with Senator Kelleher that it would be most unlikely to happen. I do not know the position but I will examine it. We dealt with that provision earlier and I thought we struck the best reasonable balance. The most important matter was to prevent consumers being embarrassed by receiving something at their workplace or apartment block which was clearly a calling in of a loan and I thought the best balance possible had been reached. I will examine the point raised by Senator Dardis and consider whether further changes are necessary for Report Stage.
I have no difficulty with the Minister's intention and I support it. However, I envisage circumstances where, for example, "postage paid" might need to be put on the envelope and it should not be under the legislation — not that it would not be, but that it should not be.
Section 63 concerns the making of ministerial regulations in relation to the form and content of hire purchase agreements. Section 62 deals with enforceability and not the form and content of hire purchase agreements. Therefore the reference is being deleted.
The Minister is fortunate that the Bill is being taken at a gallop. I envisage an amendment I would have considered putting down to the section along the lines of "in consultation with the director". I am reluctant to give the Minister unilateral powers to make regulations. This matter has been the subject of an ongoing battle in the House but I will not oppose the section. If we had a little more time and not so many amendments, I may have considered this matter.
I am not sure about Senator Dardis' point that the Minister is lucky that the Bill is being taken at a gallop. It is a most unusual situation to take almost uninterruptedly 145 amendments and try to remember to what amendment No. 87 relates. In any event, this is the case. I explained that section 62 relates to the enforceability of hire purchase agreements. Thus, the reference in section 64 regarding the obligations to comply with section 62 is simply wrong and is being deleted.
Perhaps we should call a quorum. That would allow the Minister some time to collect his thoughts.
Amendments Nos. 88 and 89 are related and both may be discussed together.
Both amendments are technical and correct a cross reference. Section 66 and not section 61 deals with the rights of the hirer to terminate a hire purchase agreement. Section 70 provides that a hirer who terminates a hire purchase agreement under section 66 has a liability to take reasonable care of the goods. Section 71 provides that where an owner has recovered possession of goods, leased under a hire purchase agreement, either as a result of legal proceedings or otherwise, the liability of a guarantor — as Senator Kelleher said earlier — shall be limited to the amount which would have been payable by the hirer if he had terminated the agreement under section 66.
I am being pedantic but the legislation states if the hirer had "determined" the agreement under section 61. It does not state "terminated".
I understand the legal import is the same. That is what the word is intended to mean.
I thought it might have been a typographical error.
Amendments Nos. 91 and 92 are related to amendment No. 90 and all may be discussed together.
Section 87 is concerned with the contents of consumer hire agreements. In amendment No. 90 I am proposing, in line with what was adopted in relation to other forms of credit agreements, to dispense with the requirement that a copy of the agreement has to be sent by prepaid registered post. Ordinary post will suffice. By way of amendment No. 91, I am acting on the advice of the Office of the Attorney General, replacing the term "bailment" which is appropriate for hire purchase agreements, with the word "letting".
The reference to section 96 in section 87 (6) should read "Section 95". Section 95 imposes an obligation on the hirer to disclose the whereabouts of the goods under hire.
Section 89 deals with the making of regulations to amend or modify the form and content of consumer hire agreements. The reference in section 89 to section 88 is now being deleted as section 88 has no applicability or relevance to the making of regulations. Section 88 deals with the enforceability of consumer hire agreements.
Amendments Nos. 95, 96 and 97 are related to amendment No. 94 and all may be discussed together.
Section 97 concerns moneylender's licence and the various procedures which have to be undergone both to apply and be granted such a licence. One of the grounds on which the Director of Consumer Affairs may refuse a moneylender's licence is that a court has found the applicant to be charging an excessive rate of interest during the previous two years. The reference "to court" is now consistent with an earlier amendment to section 50 being changed to "the Circuit Court".
A further ground for refusal to grant a licence includes the applicant being the holder of bookmakers, drink or gaming licences and in the event of this Bill being enacted, a pawnbroking licence. The references to bookmakers, intoxicating liquor and gaming licences are being expanded to include reference to the specific legislation under which they are granted.
In line with these changes an insertion is now being made in the Bill whereby the grounds on which the director may suspend or revoke an existing licence are made more explicit. These are conviction for an offence by the holder of a licence or any business with which he is connected for breaches of section 102, which concerns illegal moneylending; becoming the holder of a bookmaker's, intoxicating liquor, gaming or pawnbroker's licence and failure to comply with any terms and conditions of a licence.
Section 98 imposes an obligation on a moneylender to display a copy of the licence in a prominent position in any business premises used for moneylending. By means of amendment No. 3, the concept of authorised copy to be given by the Director of Consumer Affairs was introduced. Hence, there is a need for this amendment.
Amendments Nos. 98 and 99 are related and both may be discussed together.
Section 100 prohibits the alteration of a moneylender's licence by any person other than the director or his staff. This prohibition is now being extended to the authorised copy issued by the director.
Section 102 prohibits any person engaging in the business of moneylending without a licence. The amendment now being inserted prohibits any person from giving false or misleading information to a member of the Garda Síochána while stopping, questioning or searching persons whom the Garda has reasonable cause to suspect is engaged in illegal moneylending.
This amendment to section 102 requires a person to comply with any request made to him by a member of the Garda to be stopped, questioned and searched when the Garda has reasonable grounds to suspect that such a person is engaged in illegal moneylending.
Section 102 (1) (b) says "he maintains a business premises for that purpose which is not used as a residence by any person." What is the purpose of this provision in the legislation?
It has to be taken in the sense of the total section, which says that "A person shall not engage in the business of moneylending on his own behalf unless — (a) he is the holder of a moneylender's licence, and (b) he maintains a business premises for that purpose" which is not his home. He must meet these two conditions to conduct that business.
What if he lived in an apartment that was not his home and owned the whole premises? He could have a licence but yet could be leasing apartments over that building to somebody else. Would he then not be infringing the legislation?
No, he would not.
It does not specify his home.
If he was resident in one apartment in a block of apartments and if different flats in the block of apartments were his business address, he would be perfectly entitled to conduct it from other flats in the same block.
I am slightly at a loss. First he has a licence, we accept that, and he maintains a business premises for that purpose which is not used as a residence by any person — not by him but by any person, in other words, if he has a business premises which is also used as a place of residence by any person would he be infringing the legislation?
In other words, a person who has a moneylending licence and owns a complex of flats, one flat of which would be for the purpose of his business, could not lease any of the other properties to a person as a residence. Would that be the case?
No. There is nothing to prevent him from doing what he likes with the rest of the block so long as the address from which he is conducting his business is not used as a residence by him or anybody else.
I can think of another situation. I understand the distinction the Minister is making; he has to have a separate premises which is clearly identifiable as a moneylending premises. It would not matter if he lived down the hall from it provided there is a separate premises. In many rural towns an elderly widow living upstairs on the main street may decide to let out the ground floor to the local dentist or doctor who sets up a surgery. From the way this legislation is drafted it would appear that if our moneylending friend did that it would be illegal.
I will take advice on it but my own opinion is that it would not mean that. If the downstairs or first floor was designated as the premises that is the definition of business premises as intended here. It does not mean the entire complex or that somebody cannot use some other location in the entire complex as a residence. It means that there is an explicit, identifiable, separate business premises within a block of apartments, houses or buildings. As I read it, it is not intended that if somebody is sleeping in a separate section of the building that would disqualify the issuing of a licence to a person under this section. I will take advice on it however.
What is the purpose of it? The moneylender who holds a licence and who has a premises will have to specify that he is trading on the first floor or in the left hand side of the premises, while somebody living on the right hand side in a bedsit will be in breach of the legislation. What is the basic purpose of having to ensure that he maintains a business premises for that purpose which is not used as a residence by any person? I could possibly understand "by the moneylender himself" but not "by any person". A two storey house in the main street of any rural town would have to become a separate property or a separate business. He would have to put his address as bottom floor or top floor, floor A or floor B. What is the reason for it?
The reason is that you must have a separate identifiable place for conducting the business of moneylending. A few minutes ago Senator Dardis asked whether you could put postage paid on an envelope and I have established, incidentally, that you may do so. Having regard to the extremes we have gone to to protect confidentiality and privacy, it would be crazy if all the files of the moneylending business concerned were under the bed and whoever happened to be in the bed on the night in question could go through them at will if they had not anything better to occupy them. I think it does make sense.
The Minister has our support in terms of making sure that it is an identifiable business and that it is absolutely separate. It goes without saying that we support that concept, but the Minister can see that there is some potential for confusion and that is putting it at its mildest. Perhaps it is something he could look at. If Mrs. McCarthy, who is living upstairs and owns the entire premises, by virtue of her circumstances decides to let the ground floor on the main street of a rural town, there is some potential for confusion as I see it.
I will look at it.
Problems could be created by a person leasing a certain portion of their building. While there might be a totally separate entry or access point from the street, there could be technical difficulties which could lead to severe difficulties if a person who has a premises and tries to lease the bottom floor or a portion of the building, finds that they will be in breach of this legislation. The Minister should check that point. We are totally in agreement with trying to protect the confidentiality of the client, but that difficulty could arise.
This new section is designed to strengthen the powers of the Garda in their proposed onslaught on illegal moneylending. The new powers being vested in the Garda are to enter, if need be by reasonable force, a premises or part thereof other than a dwelling which they suspect is being used for the business of illegal moneylending; to search and inspect the premises; to search and question any person in the premises and to seize and retain any incriminating documents. These new powers are in addition to the wide powers already prescribed for obtaining information in section 7 of the Bill for authorised officers. In exercising their functions the Garda shall not be obstructed or be given false or misleading information. Finally, a person must comply with any request under this section made by the Garda.
This is a very good amendment which perhaps we could incorporate into a lot of legislation. Do the Garda require a warrant to enter the premises or can they simply make an entry in accordance with this legislation?
In the case of the legal moneylending business they must apply for and secure a warrant. In the case of the illegal moneylending business, where a garda can subsequently prove that he had reasonable grounds to suspect that illegal moneylending is going on, he may enter by reasonable force if necessary.
Without a warrant?
Without a warrant.
Amendments Nos. 103, 104 and 105 are related and all may be discussed together.
The existing section 109 deals with search warrants. Amendment No. 101 empowers the Garda on entering a premises with a warrant to question any person found on a premises or part thereof on which there are reasonable grounds for suspecting that it is being used for illegal moneylending. Any person so questioned shall not, as now provided by amendment No. 102, give false or misleading information. Amendment No. 103 requires a person to comply with any request made to him by the member of the Garda under the authority of the search warrant.
Amendments Nos. 106 and 140 are consequential on amendment No. 107 and all may be discussed together.
Section 113 of the Bill prohibits the collection of repayments under moneylending agreements at certain times. This prohibition was motivated by the need to safeguard family privacy and avoid any unseemly incidents particularly at unsocial hours which could cause distress to family members, especially young children. The purpose of this amendment is to allow for the collection of repayments outside the hours specified by the Bill subject to the strict conditions which I enjoin the legal moneylending industry to observe to the letter.
It has been represented to me that there is a discernible need for a concession in the hours of collection to cater for family circumstances. The present amendment provides for collection being made between the hours of 8 a.m. and 10 a.m. on any weekday provided that the consumer so consents in writing, in a document separate from the moneylending agreement and in the form set out in the Seventh Schedule now being inserted. A copy of the consent must be handed personally to the borrower upon giving consent or sent to him within ten days. Such consent may be withdrawn at any time by the borrower.
Has there been much debate about the times? It is a fairly restricted two hour period. I would hate to have somebody coming to my door at 8 o'clock in the morning, but that is a personal matter and I will not attempt to influence the legislation on that basis. What consideration did the Minister give to a more extended period?
That is not the only period; the normal period is from 10 o'clock to 8 o'clock.
I realise that.
The normal period is 10 a.m. to 8 p.m. but this is a specific extended period in circumstances where the consumer agrees and consents in writing. The consumer can withdraw the consent. There was quite a lot of discussion on it.
I realise there was a lot of discussion.
Much of the discussion, with which I am not necessarily in agreement, was promoted by the Senator's party.
I understand that.
I do not want to make Senator McGennis complicit in this. It was not the view of her party that it should be broadened at all.
Section 114 imposes a ban on the selling of goods by a moneylender or his agent when a cash loan is being advanced. The deletion of the term "consumer" at line 2 of page 60 is to ensure consistency. As Senators will note the term "borrower" is used in line 3. It is purely tidying up the legislation.
This brings us back to the land Senator Dardis wanted to get away from in terms of the use of language but I am so advised by the Attorney General's Office. Section 119 is concerned with the procedures for applying for and being granted a mortgage intermediary's authorisation. The application fees are £500 for a company or partnership and £250 for a sole trader. On the advice of the Attorney General's Office the words "in the case of" are being substituted for the word "for".
Subsection (7) relates to the variation of the fees for mortgage intermediaries authorised by ministerial regulation. This power is already contained in subsection (5) and subsection (7) and is accordingly being deleted.
Section 120 requires the holder of a mortgage intermediary's authorisation to display a copy of it in a prominent place in any premises used for this purpose. Amendment No. 3 introduced the principle of the Director of Consumer Affairs giving a mortgage intermediary an authorised copy of the authorisation for use and display. The amendment reflects the proposed practice.
Amendments Nos. 112 and 113 are related and both may be discussed together.
Section 121 prohibits any person other than the director or his staff from altering a mortgage intermediary's authorisation. This prohibition is now being extended to the authorised copy to be used for display purposes in the business premises.
Section 132 stipulates that agreement for a housing loan must contain the information — for example, the amount of credit advanced, the period of the agreement, number of instalments and so on — set out in Part II of the Third Schedule to the Bill. Amendment No. 114 states that this type of information may also be prescribed by ministerial regulations.
Section 136 concerns endowment loans for house purchases. This amendment to subsection (2) requires a mortgage agent to supply an applicant for a housing loan, where the application is made other than by way of application form, with a notice contained in subsection (1) that there is no guarantee that the proceeds of the endowment policy will be sufficient to repay the housing loan as it becomes due. Subsection (1) already requires that this notice be included in applications for endowment loans.
Section 137 imposes a duty on the mortgage lender to disclose if it is his policy to change interest or other charges on arrears on a housing loan. Amendment No. 116 obliges the mortgage lender to ensure that any information, document, application form or letter of approval must give details of the amount of such interest and/or other charges.
The Minister probably answered my question which relates to legal fees. I have a case with the local authority where there is a small amount of arrears on a local authority mortgage, but every time a solicitor's letter is sent a £40 charge is added to the arrears. Would this section of the Bill oblige lending agencies to tell a borrower that they will be liable for interest plus a solicitor's costs?
Yes, as I understand it the reference to "other charges" includes all other charges that would be an encumbrance on the arrears including additional legal fees.
I should also have said to Senator McGennis that local authority loans are now expressly provided for in the Bill. Section 138 of the Bill deals with the advertising of housing loans. Subsection (1) empowers the Director of Consumer Affairs, if he considers it expedient to do so, to issue directions to mortgage agents in relation to such advertisements, including a direction for their withdrawal. The new subsection (3) being inserted requires mortgage agents to comply with these directions.
As the Minister goes through the sections questions occur to me. This covers the advertisements which appear in the papers offering people the option of remortgaging their properties and telling them how this will affect them. There has been a lot of controversy over those advertisements and the effect of remortgaging. Am I right in saying that the Minister is attempting to control that?
It does not only apply in respect of this amendment. There are a number of areas in the Bill where the manner of advertising is specified. Where the director is not happy with the manner of advertising he may intervene to cause it to be altered, changed or withdrawn, including the kind of circumstance that the Senator is adverting to. It is a very significant power and the discretion lies with the director.
Amendments 118 and 119 are related and may be discussed together.
Section 140 relates to the making of regulations in relation to the duty to dispay information about the type of business being undertaken as regards the provision of credit. Consistent with the substitution in amendments earlier of the term "financial accommodation" for the word "credit", this change of wording is now being applied to section 140.
Section 141 imposes restrictions on the use of inertia selling provisions in regard to credit. The present wording of subsection 1 is restricted to the purchase of any goods or services. This is now being expanded to include the obtaining of credit and the purchase or hiring of goods or services.
Section 143 prohibits the exclusion of obligations or rights and agreements for any form of credit agreement and goes on to provide that where such exclusion occurs the agreement is unenforceable. However, as a housing agreement cannot be made unenforceable, it is necessary to draw attention to this fact in subsection (b) of the section. This amendment is for clarificatory purposes.
Section 145 requires a creditor or owner who refuses a consumer's application for credit or hiring facilities to disclose the identity of persons contacted where the information given by them on the financial standing of the consumer influenced the decision to refuse. In line with the wording used elsewhere in the Bill, the words "a credit agreement or a consumer hire agreement" are now being replaced by the words "an agreement".
Section 147 places an obligation on credit intermediaries to disclose in writing to the consumer the nature of the financial accommodation, the repayment details, including APR, the name of any undertaking for which the intermediary acts and the amount of commission received on arranging the finance. This amendment now places a further obligation on credit intermediaries to disclose who has the property and the goods during the agreement. Depending on the nature of the agreement, property may pass at different stages or it may not pass at all. Under a credit sale agreement the property passes to the buyer immediately upon the making of the agreement, whereas a feature of consumer hire agreements is that property remains at all times with the owner and never passes to the hirer. With hire purchase agreements, the property will pass to the hirer once the terms of the agreement are complied with. Until such time as the agreement runs its full course, the owner will have a lien on the goods. It is important for a consumer to know who has ownership of the goods. This has obvious implications for a consumer who wants to sell the goods during the currency of the agreement.
There is an error in amendment No. 128. The reference to subparagraph (i) in subsection (11) (b) (ii) should read subparagraph (i).
I indicated on Second Stage that I had had meetings with representatives of the Irish Bankers Federation, the Irish Mortgage and Savings Association and the Irish Finance Houses Association about the implications for them of section 148 of the Bill, which concerns customer charges by credit institutions. I also informed the House on that occasion that I had had consultations with the Director of Consumer Affairs in whom responsibility is now being vested for the regulation of bank charges, a duty until now performed by the Central Bank. In considering the case for change I was anxious at all times that the Director's functions would not be dispensed too widely, particularly to areas which are not of major concern or significance to any category of bank customer. My principle aim is to ensure that all future increases in bank charges or the introduction of new charges must be fully justified by the applicant institution and must not bear too heavily or unfairly on any one class of customer, be they consumers, small or medium sized enterprises or the farming community. Equally, there must be a measure of fairness attaching to the new scrutiny regime in order to avoid undue burdens on financial institutions where the volume of business is small relative to that of the major banks or building societies. Reflecting on this approach I now put forward this amendment as I promised on Second Stage.
Acceptance of this amendment involves the deletion of section 148 of the Bill.
Section 148 deleted.
Amendment 129 imposes a duty of confidentiality on the director equivalent to what would have been imposed on him as in the case of the Central Bank. It is not an importation of the precise section from the Central Bank Act but its import, in terms of the duty of confidentiality imposed on the director, is similar.
Amendments Nos. 130 to 133, inclusive, are related and may be discussed together.
Amendments Nos. 130 and 131 are technical and correct cross references. Amendment No. 123 reinstated as section 147 the deleted section 9, which deals with mortgage intermediaries. Credit intermediary authorisations are now granted under section 147 (1) whereas the previous reference was section 9 (1). The contents of the authorisation are now set out in section 147 (8) rather than section 9 (5). This is merely tidying up the situation.
This is a technical amendment which corrects a typographical error. The director may refuse to grant a pawnbroker's licence on the grounds that the applicant is by order of a court disqualified from obtaining a licence. In the Bill this was misprinted as "disqualified for obtaining a licence".
Amendments Nos. 135 and 145 are related and may be discussed together.
In accordance with the provisions of section 4, which require the director to present his annual report to the Minister not more than three months after the end of each year and require the Minister to lay the report, within two months of receipt of it, before each House of the Oireachtas, I am proposing an amendment inserting a similar provision into the Consumer Information Act, 1978. Amendment No. 145 is a consequential change to the long title of the Bill.
Will the Minister outline the existing provisions in respect of the director's responsibilities under the 1978 Act? When must he submit his report in respect of other areas to the Minister?
The 1978 Act does not provide for a time limit but there is a time limit in this Bill.
I realise that. I should not refer to Senator Quinn because he is absent. If he were here, he would be strong on this matter.
If he were here, he would be very happy. Having regard to what is happening in the retail trade, he is probably a great deal happier where he is.
The effect on the repayment amount of a 1 per cent change on the first year interest rate is required to be shown in the form of notice to be included in the front page of a housing loan. The basis of the entire form of notice is to show borrowers at a glance the extent of the financial commitment they are undertaking. The effect of a 1 per cent increase will be different from a 1 per cent decrease and as the effect of a rise in interest rates is obviously the more important for borrowers, I now propose that only the effect of a 1 per cent increase need be shown. The reference to a decrease in lines 48 and 49 is, therefore, not needed.
The technical amendments to this Schedule correct two cross references which are out of sequence. Prior to the tabling of amendments by me in Dáil Éireann, sections 61 (2) and 61 (3) contained the liability for early termination of the agreement or purchasing the goods. These liabilities are now contained in section 66 (2) (a) or section 66 (2) (b). In the event of early termination the amount, if any, by which one half of the hire purchase price exceeds the total sums paid and sums due, or such lesser amount as may be specified in the agreement, must be paid by the hirer. Should the hirer wish to purchase the goods early, he may do so by paying the difference between the amount already paid under the agreement and the hire purchase price after the latter has been reduced to take into account the fact that the agreement is terminating early.
This amendment is consequential on amendment No. 138.
Some moneylenders collect repayments door to door and people who do not have the required amounts when the moneylender calls take out new loans, some of which are used to pay the amounts currently owed. Will the fact that a form is to be included in a repayment book mean this will no longer happen or will moneylenders have separate books for the new loans? I know people who can never clear their debts; their loans are continually renewed and never repaid.
The intention is to stamp out this kind of practice. A new and second loan could be taken out but the whole procedure and explicit requirements involved in taking out loans, including making them easily explicable to consumers, would have to be followed.
Government amendment No. 140 has been discussed with Government amendment No. 6.
Amendments Nos. 141, 142 and 144 are related and may be discussed together.
These three amendments combine with the effect that a pawn transaction in excess of £10 will be regarded as being a special contract and, therefore, subject to section 15 of the 1964 Act, which provides for a modification to the redemption period. In practice the redemption period for special contracts is four months. To require a pawnbroker to hold precious articles for a longer period would result in insurance implications for the broker. For non special pawn contracts, the redemption period is either six months and seven days or one year and seven days depending on the nature of the pledge.
Amendment No. 140 to the Seventh Schedule states: "I UNDERSTAND THAT I MAY CANCEL THIS CONSENT AT ANY TIME BY NOTIFYING THE LENDER EITHER BY USING THE CANCELLATION FORM BELOW OR BY WRITING TO THE LENDER OR HIS AGENT". Is there any leeway if the moneylender or his agent collect at a house in Kerry after leaving Cork and post arrives in his office that morning from the person from whom the money is to be collected cancelling consent to collection repayments between 8 a.m. and 10 a.m.? If the form arrives in the moneylender's office on 1 September at 8.00 a.m. and the agent drives to Kerry that morning to collect, is the cancellation valid from the point of arrival? Is there a possibility for argument and debate?
There is always room for debate and argument. If one were to consult solicitors on that point, one would get two different answers. The phrase is very explicit. Amendment No. 140 states: I UNDERSTAND THAT I MAY CANCEL THIS CONSENT AT ANY TIME BY NOTIFYING THE LENDER EITHER BY USING THE CANCELLATION FORM BELOW OR BY WRITING TO THE LENDER OR HIS AGENT". If the moneylender travels outside Cork, whatever his reason for doing so, I hope he will have a moneylending licence which would apply in Kerry. Since the person giving the consent to repayments or collection at extraordinary times, 8 a.m. to 10 a.m., has the option of doing so in writing or communicating to the lender, it seems that he or she can verbally advise the lender that they are cancelling that authorisation.
What would happen in circumstances where the person calling on the door is not the lender, but somebody acting on his behalf? Amendment No. 107 to section 113 states that: "A borrower may withdraw any consent given by him under subsection (2) by notifying the moneylender, his employee or agent and, accordingly, any such consent shall be terminated upon receipt of such notification.". That would appear to expressly include any person acting on behalf of the moneylender, an employee, a debt collection agent or whatever and that any such consent shall be terminated upon receipt of such notification. If the person is notified that the deal is off, they must revert to the hours provided for in the Bill.
Does the Minister agree that there is a possibility for contention and legal argument? If the letter was posted in the same jurisdiction to the office of the moneylender by the borrower informing him of the cancellation of the extraordinary collection hours between 8 a.m. and 10 a.m. and the same morning the person collecting or the agent arrives on his doorstep and the borrower, who has already informed him in writing, is not present, the moneylender could then issue proceedings or inform the borrower in writing on returning to the office. Would there be a possibility of legal argument in that case? The moneylender has been informed that the hours between 8 a.m. and 10 a.m. are no longer ones in which the moneylender can call to a house to collect repayments. The Minister has already said that there is a possibility of argument.
I said there was a possibility because I doubt if this House has ever enacted legislation which is not open to challenge by somebody who is so minded. A person would not need to travel outside Cork to confront the circumstances described by Senator Kelleher. The same question would arise if somebody posted a withdrawal to the moneylender on Friday evening and the moneylender arrived on Saturday morning between 8 a.m. and 10 a.m., although the letter was already in the post. Subsection (4) of amendment No. 107 states that: "any such consent shall be terminated upon receipt of such notification". It seems the right is there for the person to notify the moneylender, his agent or employee face to face. I cannot think of a more direct means of notification. If that was challenged subsequently, I believe it would be deemed to be adequate.
I thank the Minister for the way he dealt with this legislation — he has had an onerous day. However, my original criticism stands in that this has all the hallmarks of something which has been rushed. It has been the Minister's unhappy responsibility to clean up something that should not have come to the Oireachtas in that form in the first place. In my experience I have never known a Bill, particularly a Dáil Bill, which required so many Government amendments to come before the Seanad. There have been Seanad Bills which required far fewer Government amendments. The Bill when it was introduced required a great deal more work and the Minister has been compelled to do that work.
It has also been unfair on the staff of the House, given their limited resources, to have to deal with such complexities. There were unfortunate circumstances this week and we must accept them. The Members who have chaired the sitting also deserve our congratulations for the way they dealt with this legislation. I congratulate the Minister on having steered the Bill through the House. Perhaps he would indicate when he hopes it might be dealt with in the Dáil. Does he hope to have it completed before the summer recess? One of the reasons we were prepared, on the Order of Business, to deal with the Bill in this way was that we wished to have it enacted as quickly as possible. If it will not be enacted until the autumn one must question why we have gone through this work today.
If the Minister ever comes back to the House with legislation requiring similar amendment, I recommend that he select a particularly hot Friday in June to do so. It is the most effective way of getting the legislation through the House quickly.
I agree with Senator Dardis that it is difficult for Opposition Senators to speak on the Bill when there are so many amendments and so little time to respond to them. It was also unfair to the staff of the House and to the Members who chaired the sitting. They kept order and a sense of reality in what was a confusing situation. I do not see the reason for rushing this Bill through the House. Another few days in the Dáil would have ironed out many of the problems. It would be greatly appreciated if, in future, the Minister deliberated properly on such legislation. Then there would be no need for so many technical amendments to be dealt with in this House, obliging us to hold a lengthy sitting without affording us the opportunity for free debate.
I welcome the Bill. I studied "The Merchant of Venice" for my Intermediate Certificate. In those days the balance of power always weighed in favour of Shylock and the moneylenders. By passing this legislation we have changed that balance in favour of the consumer, and rightly so. I welcome most of the provisions in the Bill. However, I appeal to the Minister to secure adequate funding for the Office of the Director of Consumer Affairs. I hope a Deputy will not come into the Dáil in the future claiming there is a letter in that office which will rock the State to its foundations, because a civil servant in that office is unable to do his job due to lack of funding. I hope the Minister will secure sufficient funding to ensure this legislation is implemented as soon as possible.
I also compliment the Minister and thank him for bringing this legislation before the House. Of course, we are not happy — and this has happened with nearly all legislation that comes before the House — that we do not have enough time and that there are, perhaps, too many amendments. On this occasion there were more Government amendments than ever before.
However, this legislation has been under consideration since 1986. It is time it was passed even if there were so many amendments. The fact that it has taken so long shows the complexity of this area. More than one Minister has had to deal with this legislation. The present Minister for Enterprise and Employment was involved in the early stages of its formulation for a few short weeks in 1986 and he mentioned that when the Bill was introduced in the Dáil.
We welcome the Bill. I have no doubts, despite those expressed by my colleagues, about staff being made available for the Office of the Director of Consumer Affairs. There is no point in passing legislation if one does not follow through with the required number of staff to implement it. If a case is made to Government, I have no doubt that the funding will be made available for the required staff to implement this Bill properly.
This is a good day for the consumer. I hope, as Senator Dardis said, the enactment of this Bill will not be delayed until October. The Minister said this morning he intends to have the legislation in place in time for the issue of the new moneylender's licences. I presume the legislation will be signed by the President as quickly as possible.
It has been a long day. On a day such as this one must admit that, apart from the Minister and ourselves, the officials have had a tough day. I compliment them on their work in giving frank responses to our questions.
This is the first time I have been present for the Minister's appearance in the Seanad in his official capacity. We soldiered together in a different forum and I wish him well in his new high office. The Minister was an extremely good public representative at local authority level and it is obvious that he will continue to be so as a Minister.
This is an important Bill. I wish I had the opportunity to have a greater input to it. However, we all have our areas of responsibility and this was not mine — when I saw the size of the Bill I was glad. The Bill offers protection to the consumer in an area where it is badly needed. It is difficult, particularly when Bills are initiated in the House and when one is in Opposition and does not have the back-up and resources one might have on the Government side, to understand and deal with amendments. That has been my experience with amendments on Report Stage of a Bill in particular. However, if a Bill is being amended it means that the Minister and his or her staff are at least listening to and accepting some of the observations, criticism and recommendations of Members and lobbyists, who also have valid cases to make.
I am not entirely critical of the amendments. However, it is probably more difficult for the Opposition to come to grips with amendments, especially with the number made to this Bill. I congratulate the Minister on introducing the Bill. I am sure he will introduce many more interesting and vital Bills during his term of office.
I again pay tribute to the work of my predecessor, Deputy O'Rourke, in initiating the legislation. I regret the Bill has been concluded on the terms that were forced on us today. It is not the ideal way. However, there are a number of things that can be said in mitigation. The Bill was a long time in gestation and it took a long time to come through the Oireachtas. It is true, perhaps, that it got through in a manner that was less than perfect. However, as Deputy McGennis says, my predecessor and I have been open to accepting amendments. As a result, consequent changes were necessary in the structure and technical arrangement of the Bill.
Senator McGennis mentioned the impact of lobbyists. This Bill has been subjected to the most inordinate lobbying. Lobbyists have followed the progress of the Bill from the Public Gallery from the first day and are here today even in these conditions.
The situation is similar to that in the former Dublin County Council.
It is remarkably similar in some ways to the former Dublin County Council. I do not suggest that the lobbyists will be happy with the outcome of the Bill because they do not mind my saying that they have been acting for sectional interests. However, some of the amendments and a great many of the arguments put forward by the lobbyists have been given expression, maybe not exactly as they would like but in one fashion or another, in the Bill. I referred to meetings we have had with The Irish Bankers Federation, the building societies, the finance houses and so on, and we have gone some way towards accepting their arguments.
Ultimately, the important thing is that it is a better Bill, notwithstanding the fact that we would have perhaps preferred if there was more time available to us today for debate. However, there is no doubt that it shifts the balance in the relationship between borrower and lender. New rights are conferred on the consumer, the consumer has new protections and authority is reposed in the director to vindicate those rights. It is a good day for the consumer. Notwithstanding the exigencies of the circumstances we have today enacted a Bill that will have a major impact on the lives of a very great many citizens. We occasionally enact Bills that do not have a far reaching impact, but this Bill will have a major impact on the lives of hundreds of thousands of people.
I am indebted to the persistence of Senators for staying with the debate today and I thank them all. I wish to be associated with the remarks of Senator Dardis regarding the contribution of the staff of the House. I thank them for their diligence. I also thank my officials who have laboured in the vineyard for many hours above and beyond what is imposed today on their colleagues on the staff of the House.
As I understand it, the Bill is rostered by agreement between the Whips in the other House for Thursday next. As a result, I hope that by midnight on Thursday or thereabouts, if not earlier, the Bill will finally be through both Houses of the Oireachtas. This Bill will greatly improve the quality of life of the people.
Amendment No. 79(a) to section 50(3) in the name of Senator Dardis, which was agreed to today, should, in view of Government amendment No. 74, be a reference to subsection (1) of that section.
When is it proposed to sit again?
At 12 noon on Tuesday, 4 July 1995.
The Seanad adjourned at 3.35 p.m. until 12 noon on Tuesday, 4 July 1995.