Select Committee on Enterprise and Economic Strategy debate -
Tuesday, 19 Jul 1994

SECTION 44.

Mrs. O'Rourke

I move amendment No. 132:

In page 30, paragraph (a) (i), line 9, to delete ", unless" and substitute "and".

This section is important because it relates to telephone calls by creditors. Various groups made representations to me about this. A creditor shall not visit a consumer at any place between the hours of 9 o'clock in the evening on any week day and 9 o'clock in the morning on the following day, or at any time on a Sunday or a public holiday. The purpose of this section is to ensure that unwanted harassment of consumers does not occur. However, provision has been made for the consent of the consumer to be given to visits which may take place outside normal hours and this has been done in order to facilitate people who work different hours or are on shifts away from home. In paragraph (b), provision has been made for the consent of the consumer to be given in writing in order that correspondence, visits or telephone calls may be made to his employer or any member of his family who is not a party to the agreement.

My amendment seeks to delete "unless" and to substitute "and". This is a drafting amendment arising from various representations made to me. The consumer could consent to visits or telephone calls if he wished because the person who works different hours or shifts may want to be approached at that time.

Mr. R. Bruton

As regards contacting a consumer, what constitutes a "reasonable effort"? A lender could go to a consumer's place of employment if he can allege that all other reasonable efforts have failed. Has the Minister a briefing note about the term "reasonable effort", or will the Director of Consumer Affairs have to set out, by way of a code of practice, what constitutes a "reasonable effort" in this context?

Mr. Flood

This is an important section, as the Minister said, and I am sure she has received a large number of representations about it. Section 44 (a) mentions "a consumer without his consent" and then states what a creditor cannot do as regards contacting him. There could be a problem for people entering into credit agreements with the vigilant financial institutions, which may request the consumer to waive his or her right to such a proposal. The time will come when a consumer may be pressed to waive his or her right to a lending institution under this section. If someone is under pressure and wants to borrow money, the lending institution may say it is only a matter of convenience, but it would like to remove the condition that it cannot contact the person outside the hours referred to in the section, or at weekends, or at the person's place of work. Is it not possible to address this issue? If we left out "without his consent", it would put an onus on the lending institution not to request that.

Mrs. O'Rourke

It also takes into account the consumer who does not work the normal nine to five hours and who does shift work. People who work in factories and engage in shift work may want to retain this part of the section. One would cut off a consumer's right if one left out "without his consent" because the section would then read that a "creditor or a person acting on his behalf shall not visit or telephone a consumer at his place of employment" or any other place between particular hours. This would cut off any recourse which a consumer may have because of the nature of his or her work.

Miss Quill

That also relates to women who want to work.

Mrs. O'Rourke

That is correct. Deputy Flood also mentioned how the waiver clause may be used and that is dealt with under the cooling off period.

Mr. Kirk

Will consent from the consumer be written or verbal?

Mrs. O'Rourke

It will be written.

Mr. Hughes

Can a creditor or someone acting on his behalf call to the consumer's place of residence after 9 o'clock in the evening, because the section states "at any other place"? Should that not read "at any place"?

Mrs. O'Rourke

Is the Deputy talking about section 44 (a) (ii) where it states: "at any other place, between the hours of 9 o'clock in the evening on any week day"?

Mr. Hughes

I am talking about section 44 (a) (i), which states: "at his place of employment, or business unless the consumer resides at that place". If that is his residence, does the following subsection exclude it?

Mrs. O'Rourke

One cannot call to a person's home between the hours of 9 o'clock at night and 9 o'clock in the morning.

Miss Quill

This is a difficult section in which to find the correct balance. By writing in the provision, "without his consent", the Minister has found the right balance. A number of things must be taken into account, including that people who go out to work at 9 o'clock in the morning may wish to enter into an agreement before doing so. I am talking about women who leave in the morning, take their children to school and do three or four hours work, but who want to deal with such matters before they leave in the morning. It may suit them to have such a transaction worked out at 8.30 in the morning. Once the Minister says consent is always required, she is providing a safeguard against loan sharks. At the end of the day we are legislating to protect the consumers. By requiring that the consumer's consent must always be given, the Minister is providing the right degree of protection for consumers. People who live in cities know that illegal moneylenders call at anti-social hours. We must ensure that the balance of rights is maintained between the restrictions we put on legal and illegal moneylenders. The Minister has struck the correct balance in this case.

Mr. Kemmy

This section is a microcosm of the entire Bill in so far as the Minister is attempting to introduce a uniform code of practice and conduct in legislation concerning moneylending and debt collection. Approximately a decade ago I saw a film made in Canada called "Skip Tracer". It was about debt collectors and the lengths to which they went to collect debts. Some of the measures they used to collect them would make the hair stand on one's head. The Revenue Commissioners also use on-debt collection. In our work, we have come across scary and frightening cases of the lengths people go to and the intimidation they use to collect debts. Unlawful debts are often collected in the same way. The banks are also responsible for some of these practices.

I fully support this amendment. It is good and balanced and is a reasonable attempt by the Minister to bring a fair code of conduct of practice into the legislation. I would like to see it apply across the board to the public service and to sheriffs acting at local level, although the Minister may not want to get involved there. Sheriffs collect lawful debts, but sometimes bring in agents who are not squeamish in collecting debts. Their activities should also be brought within this legislation. The Minister has my full support on this amendment.

Amendment agreed to.

Mrs. O'Rourke

I move amendment No. 133:

In page 30, paragraph (a) (ii), line 11, to delete "other".

This amendment refers to the point raised by Deputy Hughes. The deletion of the word "other" is for the purposes of clarity because there is a danger that a number of misinterpretations can occur on this section as to what "other" stands for. As the section now reads, unless the consumer has given his consent, he may not be contacted at certain hours and on certain days. Deputy Hughes will be satisfied with this provision.

Mr. Hughes

I was a little ahead of myself and the Minister.

Mrs. O'Rourke

Indeed, although I have gone over it many times. The Incorporated Law Society were the sponsors of that amendment. Therefore, the Deputy is true to his calling.

Amendment agreed to.

Section 44, as amended, agreed to.