Amendment No. 231 is an alternative to amendment No. 230 and both may be discussed together.
SECTION 90.
I move amendment No. 230:
In page 50, subsection (1), line 21, to delete "or" where it first occurs and substitute ", section 82,".
The purpose of this amendment is to extend the powers of arrest of the Garda Síochána, provided for in section 90, to deal with persons who engage in the business of moneylending without a licence to do so. The Director of Consumer Affairs suggested this amendment. Deputy Bruton's amendment is similar because it has the same technical effect.
I am glad the Minister tabled an amendment with the same effect as my own. Sections 88 and 89, which currently give the gardaí the powers of arrest, require a garda to catch a person red-handed, either holding a document or collecting payments without having a licence. The gardaí should be able to act on a more general offence, such as lending without a licence, without catching them red-handed. That is the merit of including a breach of section 82 as an offence for which the Gardaí could arrest a person. In other words, if a garda has reasonable cause to believe that a person is engaged in moneylending without a licence, he would not have to wait until he catches them red-handed. He could act if his belief is reasonable. That is a sensible provision and it means there will not be an onus on the consumer or customer of the moneylender to give proof. The gardaí will be able to act without producing customers to testify against a person immediately before the arrest. They will not have to catch the person red-handed. I welcome that change.
Amendment agreed to.
Deputy Bruton's amendment, No. 231, is every bit as good as mine. It was a coincidence that his amendment happened to be next in line, but both have the same effect.
Amendment No. 231 not moved.
Question proposed: "That section 90, as amended, stand part of the Bill".
Will the Minister, between now and Report Stage, check whether this gives the Garda the power to arrest anywhere or only in a public place? Is the idea of giving somebody a right to arrest without warrant entitle a garda to arrest somebody in a business premises, for example?
I will come back to that later.
Question put and agreed to.
NEW SECTION.
I move amendment No. 232:
In page 50, before section 91, to insert the following new section:
91.—(1) The Chief Superintendent of An Garda Síochána for each district in respect of which he is appointed shall within two months of the end of each calendar year, furnish to the Commissioner of An Garda Síochána, a report in writing concerning the following matters——
(a) the prevalence of unlawful moneylending in such district,
(b) the number of complaints received by An Garda Síochána in relation to unlawful moneylending in such district,
(c) the number of offences under this Part detected during the year to which the report relates,
(d) he number of convictions under this Part during such year,
(e) the steps taken by the members of An Garda Síochána in such district to detect and prosecute such offences.
(2) The Minister for Justice shall cause a report to be published within four months following the end of each calendar year summarising in general terms the reports furnished under subsection (1) of this section on a district by district basis".
Since this Bill was published, my party has stated that unlicensed moneylenders are the real scourge. We further pointed out that they were able to act outside the law in the past in matters of lending, in setting their own rates of interest and in using unsavoury threats and other methods of recovering their money, often violently. At our last sitting Deputy Rabbitte gave a graphic description of how some of these gentlemen operate. As a result, we tabled a number of amendments to make it easier for the Garda to make detections, prosecutions and convictions and to make those processes more efficient and effective. We are grateful to the Minister for taking the essence of all those amendments, including those of Deputy Bruton, on board. Because of that, we will have a much more effective weapon with which to deal with illegal moneylenders. We tabled this amendment to further enable us to assess the effectiveness of this law,
The overall purpose of this amendment is to enable us to assess the effectiveness of the legislation we are currently putting through and to enable us to have official confirmation that what we have put in here by way of amendment to this Bill is working effectively and well and as a result, that the terrible scourge of illegal moneylending that has caused havoc and misery to people's lives down the years — it has gone largely unchecked — will be brought to an end. If this amendment is accepted, we will then be able to see the law we have worked hard to put in place operating well and having the intended result. It is the opinion of my party that we will not be able to assess that effectively unless this kind of report is furnished.
I broadly support this amendment. There was not a great deal of action taken by the Garda under the 1933 Act, which was understandable because it was not particularly effective legislation with which to take effective action. There is a need to shed light on this rather dark corner of society and ensure that we are getting to grips with the problem.
I fully recognise that the Garda do not have the complete answer to the problem of moneylending. We have to look at developing alternative sources of credit for people, through licensed moneylending as well as through other agencies. The recent survey on money lending and low income families showed that nearly half of identifiable moneylenders were unlicensed. There is a lot of illegal moneylending and there is an obligation on us to see that the Garda get to grips with this problem, now that it is armed with proper legislation. In the early years of the operation of this legislation, it will be valuable to get the sort of report that Deputy Quill is requesting until the Garda get on top of the issue.
I strongly support Deputy Quill's amendment. I would be slow to support an amendment that imposed additional duties of a bureaucratic kind on the Garda if there were not good reasons for having it. As Deputy Bruton said, the 1933 Act rarely resulted in prosecutions. When it did, the number of prosecutions were few and far between compared to the known prevalence of unlicensed moneylending. As Deputy Bruton concedes, and I agree with him, that was probably largely due to the inadequacies of the 1933 Act. It is also the case that moneylending attracts large publicity when certain individuals are caught but it still goes on wholesale throughout the community without people taking any steps to counter it. It is very much a question of "out of sight, out of mind". Voluntary agencies highlight the question from time to time and mobilise public opinion against it because of the cruel and exploitative behaviour of unlicensed moneylenders, but Deputy Quill's amendment has the merit of requiring a chief superintendent to address the issue. "Is it going on in my area; have I inquired whether the law is being enforced?" In many places, especially urban areas — I am sure it applies to rural areas as well — they will ask themselves whether they made inquiries of local superintendents, inspectors and sergeants in regard to this matter.
The big point in favour of Deputy Quill's amendment is one should remember that the Director of Consumer Affairs will not send people to hunt unlicensed moneylenders as he does not have the resources. He has enough to do with his huge number of other duties. He may refer matters to the Garda when he gets confidential information but he cannot hope to take a proactive role against this evil. Therefore, if the Director of Consumer Affairs is not responsible for initiating investigations, doing checks in areas where he gets complaints and the like, there is a danger that responsibility will fall between the Department of Justice and the Department of Enterprise and Employment. In those circumstances, there would be an avoidance of the obligation to make sure the law is vigorously enforced. That is why it would be useful to have, for instance in a Garda district in Dublin, a report from either the superintendent or chief superintendent saying that they have had no reports or complaints in their area over the last year or that they have had 30 complaints and have only been able to prosecute three or four times. Public opinion will then be alerted to the fact that the law is either adequate or inadequate or that adequate or inadequate resources are being applied to its enforcement. It is a question of "out of sight, out of mind". At the moment the laws are inadequate and are simply not being effectively enforced. I would like to think that if Chief Superintendents had to assess annually whether this was prevalent in their areas, it would have a dramatic effect on the attitude of An Garda Síochána right down to the most recent recruit. It would bring about a consciousness in the Force of the importance of enforcing the law.
I appreciate the efforts of Deputies, Quill, Bruton, Rabbitte and McDowell, who in the last session greatly strengthened the Bill with regard to how it will be enforced and in other areas.
I have no difficulty with the thrust of what people are saying but these are matters for the Minister for Justice and the Garda Síochána. The Director of Consumer Affairs who is independent derives his funding from the Department of Enterprise and Employment and therefore comes within its remit.
I would draw the attention of Members to amendment, No. 39, in the name of Deputy Rabbitte which provoked a long discussion. That amendment stated that:
4.—(1) Not later than 12 months following the enactment of this Act, and at the end of each subsequent 12 month period, the Director shall make a report to the Minister on the operation of the Act and on the adequacy of the resources available to him——
That is the point.
——which he regards as necessary to carry out his functions.
(2) In preparing his report the Director shall consult with such persons or bodies as he regards as appropriate.
At that time I said I intended to ask the Director if, in view of the importance of this new Bill and its necessity those who are perceived to be disadvantaged, he would produce a paragraph within his annual report dealing with the Consumer Credit Bill and how the Director was being resourced for it. The Moneylenders Act, 1933, and the few prosecutions brought under it were referred to. From time to time cases create moral outrage but then people seem to forget about them. Deputies Bruton and McDowell said that, because of the inadequacy of the 1933 Act, this is one of the points on which they agreed in this amendment. However, the word consumer had hardly been invented in 1933, the Office of Director of Consumer Affairs did not exist, nor were there people dealing with consumer matters. These were unknown features of life then but I am glad the Director of Consumer of Affairs is there now.
Some fine points were made but I cannot ask, nor force, the Garda Síochána to act because it is not within my responsibility to do so. Was a similar point made during the discussion on housing loans?
Yes.
I undertook to bring the concern of the Committee to the Minister for the Environment. Following that, the Minister wrote back stating that he would issue a circular to every local authority in tandem with this Bill becoming law. I circulated Committee Members with copies of that correspondence. Thus all the transparency requirements of housing loans issued through local authorities would be as necessary on the open market.
As I do not have, and do not wish to have, the powers to force any other Minister to act, I will put Members' concerns in writing to the Minister for Justice and ask for her consideration of the matter.
I find the Minister's reply unsatisfactory. From the start my fear has been that we would develop a legal system that would put enormous restraints and strictures on legal money-lending. I have no great worries about that one way or the other, because consumer legislation must give consumers the maximum protection. However, it would be a bizarre outcome to all our discussions that when we have all the restraints and curbs on legal moneylenders in place as well as requiring on the Director of Consumer Affairs to publish an annual report on his success in implementing all the provisions of the new law we would not be in a position to make similar provision for those acting outside the law. That would be a major weakness.
On a point of correction, of course the Director of Consumer Affairs will furnish me, the Government and the Houses of the Oireachtas with a report on how he is dealing with the new law, because that is his remit.
He will not take responsibility for the unlicensed moneylenders.
Would you just allow me to finish? Clearly, he also has powers to report to the Garda on matters which are brought to his attention. We discussed the point that not alone will the consumer be entitled to bring matters to the Director's attention but representative bodies will also. It is false to say that the Director would only be concerned with how the licensed moneylender did his business. While that would be the major part of his job, I would expect that in the course of compiling his report he would also deal directly with people's concerns about illegal moneylending and how he has reported such matters to the Garda Síochána. I would see him carrying out his duties like that.
I must clear up one matter however. I cannot, nor can any other Government Minister, direct another Minister on how to do their business within the remit of their Department. What I intend to do, if the Committee so wishes, is to write to the Minister for Justice but I cannot order the Minister for Justice, or any other Minister, to do anything.
As a minimum, the Minister should confirm that she will put this amendment before the Minister for Justice and come back to us at the next meeting to confirm that the Minister for Justice is prepared to take this task on board. Knowing how things work out on the ground, it is my belief that people involved in criminal activities will have to be dealt with as they are normally dealt with by the Garda. In practise the Director of Consumer Affairs will have more than his fair share to do in seeing that all the provisions in respect of consumers and others operating within the law are implemented. People who operate outside the law have to be dealt with. The full rigours of the law will have to be applied to illegal moneylenders. That has to be done by the Garda. It is crucially important that we get an annual report of the type we have requested in this amendment. If we do not, we will have no assurance that there has been a significant improvement.
It is important because if we do not we will have no assurance that there has been any significant improvement on the ground. When even the dogs in the street knew that illegal moneylending was prevalent and that the most horrible misery and havoc was being inflicted on some of the most vulnerable families, very few prosecutions, if any, took place. In one case it was only when an illegal moneylender was found with children's allowance books in his pocket that the Garda were in a position to proceed. There were very few convictions. My fear is that this will apply in the future.
The Minister was wise and sensible enough to accept an amendment which has greatly strengthened the Bill by giving the Garda additional powers to enable them to deal with the scourge of illegal moneylending. It is also essential that in addition to the annual report of the Garda Síochána which is put before the Dáil, they should also be required to make a report district by district on their success in dealing with illegal moneylenders. That is essential if this Bill is to have the intended effect.
I ask the Minister to confer with her colleague, the Minister for Justice, on how best this can be done and to return to this on Report Stage.
I can be as wise as Solomon but the powers are not conferred on me by the Oireachtas to order any Government Minister to do anything. I must make that quite clear lest there be any labouring under a delusion that I am somehow not as excited or worked up as Deputy Quill by the amendment. I spoke before of the strong enthusiasm with which I took up this Bill in 1992. I strongly wish this Bill to have the mechanisms for proper legal moneylending and to outlaw forever the misdeeds of illegal moneylenders.
I also wish to state very clearly that I have already put this forward, so it is not at Deputy Quill's behest. I suggested, when I said that I was not taking the amendment, that I would personally speak to the Minister for Justice. It has already been done at official level and, as we would expect, it was turned down.
We would expect it since they are in the same party.
At ministerial and personal level I will bring the concerns of the committee to the Minister for Justice and ask her to see how they would best be met. The Director of Consumer Affairs will not be solely concerned with properly carrying out the duties of enforcement with regard to legal moneylenders. He will also in the course of his duties and in the body of his report be commenting on and detailing the approaches and the liaison which he has carried out with other bodies, including the Garda Síochána, with regard to illegal moneylenders. The Deputy is quite right to say that he will not go out to hunt them down as that is not his job. He is not a garda. However, he will have the duty of reporting matters which have been conveyed to him by the authorities.
It is really a matter of where the buck stops. The Garda Síochána is being given the function under this Bill to wipe out unlicensed moneylenders by affirmative action on the street, powers of arrest, powers of investigation and so on. It seems that if the responsibility for wiping out unlicensed moneylending rests on the Garda, then the Minister in charge of the Garda must have a role in this matter. This House is entitled to know that legislation is translated into action.
I fully accept what the Minister said about one Department showing respect to another. However, with the greatest of respect, I also know that even if the Director of Consumer Affairs is thoroughly dissatisfied with the rate of implementation of the unlicensed moneylender provision, all he can do is say that he is constantly receiving reports and does not see many prosecutions. He may be able to say, perhaps, that he is unhappy with the degree of co-operation he is getting. That is as far as he will be able to put it. However, the people whose actual responsibility it is, the people who are in charge of the Garda in Donnybrook, Pearse Street and so on, should put pen to paper every year and effectively say that they have done their best to implement the law.
Is the amendment being pressed?
I will wait until the Minister has conferred with her colleague, the Minister for Justice, to see if that response is satisfactory. Arising out of that I will decide what to do. However, I reserve the right to re-enter this amendment on Report Stage because I feel very strongly that if this Bill is to be effective in its implementation, this amendment will have to be taken on board.
I will undertake to do as I did for the Minister for the Environment and to convey the views of the Minister for Justice to the committee.
That is fair and I thank the Minister.
Amendment, by leave, withdrawn.
NEW SECTION.
Amendments Nos. 233 and 305 form a composite proposal. Amendment No. 234 is related. Amendments Nos. 233, 234 and 305 may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 233:
In page 50, before section 91, to insert the following new section:
"91.—(1) A person shall not engage in the business of collecting repayments whether personally or by his employee or agent——
(a) subject to subsection (2), between the hours of 9 o'clock in the evening on any week day and 10 o'clock in the morning on the following day, or
(b) at any time on a Sunday or public holiday (within the meaning of the Holidays (Employees) Act, 1973).
(2) Where the consumer has given a consent in writing in the form set out in the Seventh Schedule to this Act, nothing in subsection (1) (a) shall prevent a person from collecting repayments within the hours specified in such consent.
(3) A consent under subsection (2) shall be separate from any other document.
(4) A copy of a consent under subsection (2) shall be furnished to the consumer within 10 working days of receipt of it by the person to whom it is addressed.
(5) A consent given in the form set out in the Seventh Schedule to this Act shall subsist unless and until it is revoked in the manner provided for in that Schedule.".
Section 91 raises two key issues: access to legitimate sources of credit and consumer choice. The purpose of the proposed new section is to say that a person shall not engage in the business of collecting repayments — or, if the Minister would prefer, in the business of money-lending — whether personally or by his employee or agent except between permitted hours. I fully appreciate what the Minister is doing. She is saying that a person's home is their castle and they cannot be subject to harassment in their home at unsocial hours, just as politicians do not normally canvass after the 9 p.m. news.
The 9 p.m. news is the last knock on the door.
The Minister does not want people to be harassed in their homes by visits at 11 p.m. or 7 a.m. There are people — and this is a point which the licensed moneylenders made very strongly to me — who do want to be visited before they go out in the morning to bring their children to school or whatever. One of the aspects of this which may not be widely understood is that collectors have a routine which is almost precise to the minute. A borrower will want to know exactly when the collector will be there so that they can go to the shops without coming back to find that the collector missed them during the afternoon.
It suits the collector and the customer to have rigid routines so that the customer knows the collector will be there at 2 p.m. on Friday or that he always comes at 2.20 p.m. on Thursday or whatever. This is the way it works because people like punctuality; it suits both sides. It is a nuisance for the lender if the collector breezes in whenever he feels like it and finds an empty house because the customer does not have a routine worked out.
The practical experience is that some people want to be visited before 9 a.m. or after 9 p.m., although that is much less likely. The amendment suggests that there should be flexibility. In terms of consumer choice, it is reasonable. Somebody who works long afternoon shifts, somebody who has to bring children to school or somebody who visits an elderly mother every day wants to know they can stipulate the time the collector comes. In so far as the Minister is trying to stop unwanted harassment, all they have to do is provide that they execute a document stating that one can collect outside conventional hours.
The amendment is an effort to meet the Minister's concern and to keep the element of consumer choice in suiting people who must get to work or have to be in certain places at particular times and who expect the collector to come at 8.30 a.m. It is unreasonable to state that no collection can ever take place at hours that suit the customer, no matter what the customer wants. The amendment is self-evident.
During the compilation of the Bill, when we held many meetings with various interested groups, this point was put to me strongly by the collected credit group. I gave the matter considerable thought; this section and another section of the Bill occupied me greatly. I thought of people who have fallen prey to illegal moneylenders and the thrust of the Bill is to deal with that problem. I take the Deputy's point regarding consumer choice and I weighed up that element. Consumers have the right to say when the collection should be made. I also considered the other side of the issue, the nature and type of people who borrow legally.
We should be straightforward in this area. By and large, consumers who deal with collected credit do not have a great knowledge of events and I hope this Bill is the beginning of an awareness of consumer rights. Such people are not abreast of matters; they are not strong or assertive. In the main, they are quite the opposite. Generally, they are people with whom life has dealt harshly or who live in difficult circumstances. They are not into budgeting, arranging, asserting or challenging. We wish that all consumers had such characteristics.
I weighed both sides of the matter and gave it considerable thought. I am very much geared towards the consumer but I am also aware, from dealings with constituents, of those who do not have the gumption or the guts to stand up and challenge. I decided on the basis of my knowledge and representations made to me from groups, other than the collected credit group, to enshrine the hours in legislation. The Deputy agrees with the hours but seeks a separate form. I fear that form would become the norm rather than the exception. I deliberately inserted 10 a.m., although 9 a.m. to 9 p.m. is usual, because, in the main, women deal with collected credit and may have a number of children to get out to school. They may also have other various arrangements to make at that hour.
The weight of evidence and my instincts convince me that the consent form would not benefit the person involved in the transaction, although I gave the amendment careful consideration. This position may change in the future, when the dilemma of illegal moneylending is solved, but I am leaving the matter as it stands.
I am considerably disappointed with the Minister's attitude from a number of points of view. First, I do not see how the restrictions on legal moneylenders are relevant to illegal moneylenders, who will come whenever they choose, at 2 a.m. for example. We are dealing with legal moneylenders who comply with the licence under the jurisdiction of the Director of Consumer Affairs. Secondly, we are not talking about something unfair. The Minister said that many harassed mothers are trying to get their children out to school at 9 a.m., which is true.
I am a harassed father who has to get my child to school at that hour. Many mothers take low paid jobs and part of their daily routine is to leave at 8.50 a.m. to get to the national school with their children before going to work. For such people, it would be a nuisance if they cannot arrange to see the collector before they go to work. This is a simple example. I am talking about giving them the right to say they will see the collector at reasonable times. I am not asking for people to be given the right to arrive at houses at 6 a.m. or whatever. In the real world it requires setting up a routine to collect from such people so that both parties know the other person will turn up punctually. The Minister is telling many people in low paid employment, who have many other things to do in the morning — most people have to go to work before 10 a.m. — that the collection cannot be made in the morning. This is really what she is saying.
Yes.
This is an unfair intrusion on their privacy. At present, this is not the case. Many people——
Eleven hours in each week day.
When will they come back from work? Is it any better that a man with the collection book arrives when the harassed mother has hungry children coming in for their tea and she is returning from work? Is that any better than 8.30 a.m. if she chooses the other way? The Minister can bring paternalism too far. At present, some people want their credit collected in the morning. The Minister is saying she knows what suits them better than they do.
I am talking about the greater good and the quality and character of the people——
To say to a hard-working single mother bringing her children to a national school at 9 a.m. that one knows it is better that she should not be able to agree with a respectable credit collection agency to come at 8.30 a.m. is paternalism or maternalism of the worst kind.
Let us say it is paternalism. I had a long discussion with interest groups whose representatives are in the Public Gallery and I am glad they are here to follow the Bill. I also had discussions with various groups which deal with people in disadvantaged situations. This point of view was strongly put and I thought about it. It is not maternalism of the worst kind; it is sensible. I do not accept the amendment.
May I have the committee's permission for Deputy Brian Fitzgerald to take the Chair. Is that agreed? Agreed.
I favour the Minister's position in that it would not be reasonable for a person who is desperate for money to be told they may have the money but that collections will be made at 11 p.m. on a Friday night. Deputy McDowell indicated that they could agree not to give their consent to that arrangement. However, I see circumstances where it would be hard for someone to refuse if they want money. The Minister has allowed from 10 a.m. to 9 p.m. No working shift is that long that a person would be gone for seven days each week during those hours. I am willing to give the Minister's approach a reasonable shot.
I have not been persuaded by Deputy McDowell that there is a real problem and that people want to collect outside the hours set out. A reasonable balance between the two sides has been provided for. Given the inequality of the two sides in conducting negotiations of this type, the Minister is right to err on the side of restricting any imposition which might be made on consumers and I support her view.
The proposal is to have a separate document which may be revoked by the borrower. One cannot get back the loan if the borrower revokes the permission to call at different hours. It is not as if the loan is given and the pressure is on at that stage to agree to unreasonable, frightening or oppressive hours. The person may take the loan and then say a week later that they are finishing with those hours.
I do not know what Deputy Bruton or the Minister want me to come up with by way of evidence to support my position. Many people find it convenient to have money collected before 10 a.m. I do not know of anyone who has said to Deputy. Bruton or the Minister that a respectable licensed company has harassed them by arriving at their house at 9 a.m. and that it is unreasonable for them to do so. The Minister is saying that 10 a.m. is the earliest that they may darken a doorstep, but that does not suit many people because they have gone to work, gone shopping or out with their children. There are many other reasons also.
If one is in the business of cutting back on people's liberties and freedoms and increasing the hassle of collecting from them and is doing so from the point of view of moral paternalism in that one knows better than ordinary people how to regulate their lives, that is fair enough. However, this will not be a protection. The Director of Consumer Affairs has plenty of fire-power in terms of his licensing jurisdiction to ensure people are not harassed by respectable collected credit agencies.
We are confusing the role of the respectable collected credit agency with that of the unlicensed moneylender. We will be in the position that the only people who will get knocks on their doors before 10 a.m. will be customers of unlicensed moneylenders. Licensed collected credit agencies will be told that they may not start between 9 a.m. and 10 a.m. No other service is told that it is an intrusion to come between 9 a.m. and 10 a.m. How can that be an intrusion in people's lives? I know of no other area of commerce or human affairs — apart from perhaps the opening of public houses — where people say that one cannot start before 10 a.m.
Which amendment is Deputy McDowell addressing?
I am addressing amendment No. 233, which is a new section.
That amendment is about consent.
Section 91 (a) states that nobody may arrive at someone's door before 10 a.m.
That is the subject of another amendment in Deputy McDowell's name.
Will I get a more favourable response to that amendment?
No, I am just telling the Deputy he is on the next amendment.
No, I am dealing with amendment No. 233, which allows other hours. Nobody can reasonably say there is something sacrosanct about the hour from 9 a.m. to 10 a.m. A collected credit agency cannot agree with somebody for that to be the time of collection, although they may want it to be, because the Minister and now Deputy Bruton believe it is better that they be left alone during that hour. Why not include lunch-time and tea-time? How was it decided that this hour from 9 a.m. to 10 a.m. be sacrosanct?
I have no problem with 9 a.m. The other side of this coin is that if this is only for consumer convenience, why not allow people collect at a person's place of work? One could equally produce arguments that consumers would agree to anything.
It would necessarily be embarrassing for people to come to a person's place of work. There is no difference between 9.30 a.m. and 10.30 a.m. in terms of the embarrassment or harassment factor.
I have no problem with the morning. Most businesses operate at 9 a.m. and it is not unreasonable if it suits people to have an early morning collection. However, calling at 11 p.m. is not something which we should offer because——
I tend to agree with Deputy Bruton.
——it has the potential for embarrassment like calling at one's place of employment. Perhaps a happy medium could be struck and Deputy McDowell's second amendment rather than his first could be agreed to.
Could we deal with amendment No. 233 first?
I believe I am being whittled down. I will not call a vote on amendment No. 233, but maximising consumer choice is something which a pro-consumer Bill should do. I do not believe people would make improvident bargains.
Amendment put and declared lost.
I move amendment No. 234:
In page 50, lines 33 to 35, to delete paragraph (a) and substitute the following:
"(a) 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 another time with the prior written consent of the consumer, or"
Will the Minister express a view on amendment No. 234?
I expressed my view on amendment No. 234 when I was dealing with amendment No. 233 which has been dealt with. Deputies may call it maternalism until they drop, but remember, this business is done at the house, not at a place of business. Between 9 o'clock and 10 o'clock in the morning is a busy time in any household, bearing in mind that the people I know who engage in dealings with legal money lenders usually have children. They often borrow money to purchase goods for children, school needs, and other necessities. I do not know anyone who deals with collected credit people who is in practice or partnership, so it is families, mostly mothers. Both Deputies will agree with me on that.
No.
So it is not people with families in the main?
A wide cross section of people use it. Single people and pensioners use this form of credit too.
I deal with families and in the main the women make the arrangements to buy the credit and to pay it back. They keep these books and that hour in the morning is not suitable for rational, disciplined business arrangements at the door of one's home.
Does the Minister ever go canvassing at 9 o'clock in the morning?
I have more regard for my own skin than to go canvassing at 9 o'clock in the morning.
The Minister may be right about some people for whom it would be inconvenient, but if this measure becomes law the collector will not be able to start work until 10 o'clock and the people from whom he is collecting will have to stay at home and not go shopping until later.
Why do they all want to pounce at 9 o'clock?
The Minister has not thought through this measure.
I have. why do they all want to collect at 9 o'clock?
A person must be employed. That person has to go out on a route and knock doors to collect repayments.
Do they all want to go at 9 o'clock?
Anybody who wants to transact business in that way cannot do it before 10 a.m. which means that a housewife or mother of the kind the Minister is talking about has to wait in until 10 a.m. and cannot go out to the supermarket because the man from the credit agency is calling.
Why do they all want to pounce at 9 o'clock in the morning?
They do not want to pounce at 9 o'clock. There are plenty of housewives, the Minister is probably not one of them, who want to go shopping at 9.30 a.m. and would like, if they have to see a man on Thursday morning, that he would arrive at 9.15 a.m. They are not irrational people or masochists, they just want to get on with their day. Why does the Minister think that she should protect them from simple arrangements of that kind?
I certainly do not want to discuss all the people who are expecting men at 9 o'clock in the morning. It is their entitlement to have callers of that nature.
Not everybody is in their dressing gown and curlers at that hour of the morning.
That is a sexist remark.
The Minister said they were mothers.
I cannot understand how suddenly every collected credit person wants to be at every door at 9 o'clock in the morning. It is extraordinary.
Some may want to leave their house before 10 o'clock in the morning and may want to strike a deal with the collector that he can come between 9 and 10 o'clock. Why should it be illegal?
I may be old fashioned, but it is not very civilised to come calling to houses doing business before that hour of the morning when women with families will be very busy, with many duties to carry out in those few hours. I put the measure forward on that basis and I cannot understand why every single collected credit person now feels an imperative to present themselves at the doors at 9 o'clock in the morning.
We are getting carried away with this. Deputy McDowell's proposal is very modest and not unreasonable. Many people might have walked the children to school and for them 9 a.m. is very suitable. The children are gone, they are at home, they have something to do that day and they are quite happy to have someone call at 9 a.m. That is not an unreasonable request. All the collection will not now be catapulted into the hour between 9 a.m. and 10 a.m., to everyone's misfortune. If a housewife said that she has to bring the children to school and will not be back in the house until 10 a.m., not many people would insist on calling before then. We should not make a mountain out of a molehill. Prohibiting the collection of credit after 11 p.m. is different. This is not unreasonable.
No. I accept that Deputy McDowell is a very wise and knowledgeable person in all sorts of matters. We all have knowledge of large housing estates in which there might be 200 or 300 houses. There are people who do not want others to know that they are doing business of this nature, even though that business is legally collected credit. I am being very straight-forward because I know these people. They do not want that knowledge to get out even though the business they are doing is proper and correct. Between 9 a.m. and 10 a.m. there would be much activity on a housing estate because by their nature many children are coming and going throughout that hour to various schools. People have said to me that they do not want their neighbours to know that they are dealing with a moneylender. These would be proper moneylenders, not illegal moneylenders. They do not want the estate to know their business.
I accept that, but the valley of the squinting windows phenomenon does not stop at 10 a.m.
The Deputy accepts that there are lots of goings and comings between 9 a.m. and 10 a.m.
Second, it may well be that some people do not want to be visited at 9 a.m. because they have a nosy neighbour who goes out to work or shop at 9 a.m. and they would feel safe if the collector called later. I accept there are possible circumstances where that would happen, but the collected credit people always oblige the customer because the customer can just sit in the house and refuse to answer the door for an hour. That credit collector will not stand at a door for an hour for two weeks in a row.
It is a sure way of drawing attention to yourself.
He will ask the customer when he or she wants him to collect because he does not want to hang around. The reality is, Deputy Bruton at least is on my side on this one, to say to a collector and to a customer of a collector that they cannot do business between 9 a.m. and 10 a.m. because some people might be offended and it might not suit them is paternalism of the worst kind. I am unable to see how the Minister can advise that when the milkman can deliver his milk at 9 o'clock in the morning and when the newspaperman——
They do not deliver any more, except in yuppie land.
The Minister is living in the sticks.
I am from rural Ireland, and pleased to be.
In addition, the postman can deliver at 9 o'clock in the morning.
He is not seen, as he drops the post through the door.
In Rathmines the post does not arrive until 12 p.m. Prior to her being made a Minster and elevated to her current high status, how many times did the Minister arrange for the washing machine to be repaired and in doing so requested the serviceman to attend as early as possible in the morning as she had to leave the house by 9.30? How many times has the Minister convenienced herself by making arrangements of that type, and given this, why is she now telling collected credit customers that they cannot make such arrangements?
The Deputy is forgetting one salient point, and I am unsure if he is conveniently forgetting it. I am more or less in command of my life, and have always been. I am glad I was brought up so that I was able to be. The lives of people who deal, rightly or wrongly, with collected creditors are not so arranged that they can——
I agree with the Minister's point, but they do not want the Minster to be in command of their lives either. In addition, they do not want the Minister to say they must hang about their houses for an extra hour in the morning because the Minster believes they are so befuddled as not to be able to handle their own affairs properly.
I never said "befuddled". The Deputy betrays a very alarming streak, and he is certainly from Dublin 4.
It gives people an opportunity to have their weetabix in the morning.
Sadly, some of them do not have the opportunity to have any weetabix.
The Minister has a valid point as young children often have to be taken to school. In rural areas such trips often take 45 minutes and it is 10 o'clock before people return to their homes.
Given the type of visit which collected creditors make, they should not call on houses to collect in the presence of children at that hour of the morning, and when it is not realistic to expect parents or people to be at home. It is bad enough to call in the evening.
Regarding Deputy McDowell's remark about the postman calling at 9 o'clock in the morning, we have to wait until 5 p.m. for him to call because of where we live, and there are many people in a similar situation. People collecting insurance premiums on behalf of insurance companies generally make collections in the evening on specific days of the week, such as Thursday, Friday and Saturday. They do not collect on Mondays or Tuesdays or in the early mornings.
That is my point, but the logic of this is that people should be left to make their own arrangements. It may suit some people, but not others. If somebody is embarrassed by having the children there when the collector arrives, it should be open to that customer to request the collector to visit earlier or later, or whatever time suits the customer. The Minister should think in terms of the convenience of others and she should not say to a woman who wants to have her credit collected on a Thursday morning every week that she has to hang around the house until 10 o'clock because it is illegal for her to see the collector before that time. Such an approach is determinism gone mad.
It is obvious that the Committee will not find agreement on this. A Member of the European Parliament has asked us not to put back the clock this year, but it would appear that the Committee will not put the clock back on this issue.
Amendment put and declared carried.
Section 91 agreed to.
NEW SECTION.
Amendment No. 236 is related to amendment No. 235 and both may be taken together. Is that agreed? Agreed.
I move amendment No. 235:
In page 50, before section 92, to insert the following new section:
"92.—A person on the occasion that a cash advance is made to a consumer under a moneylending agreement, shall not sell or offer for sale any goods to that consumer.".
This is a serious amendment to which the Minister will, I hope, pay careful attention as it is one on which many jobs hang in the balance. Section 92 states:
A person, whilst collecting repayments or otherwise engaged in the business of moneylending shall not sell or offer for sale any goods which are to be the subject of a credit agreement.
The definition of "moneylending" set out in the Bill contains the following clause:
(a) the agreement was concluded away from the business premises of the moneylender or the business premises of the supplier of goods or services under the agreement,
This means that, in its present form, anybody who goes from door to door selling goods on credit must cease activities completely, because the definition of "moneylending" contained in the Bill at line 26, page 11, includes selling goods on credit away from the business premises. However, as this formula stands, such business is annihilated. For example, if I go to the Minster's door, wherever she lives, and sell her goods on credit, I am engaging in moneylending within the definition contained on page 11 because I am selling goods away from my premises on credit.
Is the Deputy referring to credit or goods?
I refer to goods. The definition of "moneylending agreement" in the Bill states:
"moneylending agreement" means a credit agreement into which a moneylender enters, or offers to enter, with a consumer in which one or more of the following apply:....
It is a credit agreement.
That is correct. If I go to the Minister's house and sell her a table, chair or whatever, and the Minister must pay me back in instalments, this is a moneylending agreement under the terms of this Bill. If this is combined with section 92, it means that I cannot offer the Minister another chair when I am out collecting the repayments, which appears to be circular in its effect.
Section 92 includes: "A person, whilst collecting repayments or otherwise engaged in the business of moneylending...".
That is correct, and engaging in moneylending is supplying goods on credit away from one's premises.
The Deputy has reverted to the definition of "moneylending" contained on page 11 of the Bill.
That is correct, and this definition states:
"moneylending" means credit supplied by a moneylender to a consumer on foot of a moneylending agreement;
Moneylending means credit, supplied by a moneylender——
On foot of a moneylending agreement, and "moneylending agreement " means a credit agreement——
The definition states:
"moneylending agreement" means a credit agreement into which a moneylender enters, or offers to enter, with a consumer in which one or more of the following apply:
The Minister should consider the clauses which then apply, especially clause (a).
However, moneylending agreement means a credit agreement.
That is correct.
Is the Deputy suggesting that a credit agreement is the same as a goods credit agreement?
The definition of "credit agreement" states:
"credit agreement" means an agreement whereby a creditor grants or promises to grant to a consumer a credit in the form of a deferred payment, a cash loan or other similar financial accommodation and includes a hire purchase agreement;
If I go door to door selling chairs and advise buyers to repay me in monthly instalments and if such a transaction is conducted away from my premises then it comes within the ambit of the definition of "moneylending agreement" contained on page 11 of the Bill,
This is a little puzzling, but it would not be a good practise for moneylenders to call to doors and wave before people's eyes glossy goods as an inducement to take on moneylending agreements. Moneylending should be a separate business and, where possible, we should not encourage the combination of moneylending and the sale of goods. We have a hire purchase section in the Bill and if people want to sell on credit they should comply with the hire purchase provisions rather than doubling as moneylenders.
We should try to make a clean break between the two activities. Deputy McDowell is arguing that many people are conducting what is now legitimate business which we will render illegal. If that is the case it is an issue of concern. If such people cannot be accommodated under the hire purchase or other provisions of the Bill without seriously discommoding their activities we might have to think again.
In principle the two activities of selling and credit should be kept separate and we should not mix payments and disguise what is happening and, for example, have the coal man collecting money partly for coal, partly for some moneylending agreement and selling furniture.
Deputy Quill's amendment states: "A person, on the occasion that a cash advance is made to a consumer under a moneylending agreement, shall not sell or offer for sale any goods to that consumer." That is the evil which the Minister is trying to stamp out, the case where someone might give £100 in cash and then produce some substandard goods.
What we are all trying to avoid is the case where somebody might be making payments to a collected credit person or have made an arrangement whereby they were going to borrow £100, for example, and just as the person receives the £100 the lender might produce new anoraks and offer them for sale. In effect, the two transactions happen together: one is dependent upon the other and there is a compulsion to purchase.
If one looks at Deputy Quill's amendment——
I do not know if that is what Deputy Bruton as talking about.
We are all talking about the same thing. Deputy Quill is not saying that she does not want section 92 to have any effect whatsoever. She is saying that on the occasion that a cash advance is made to a consumer goods cannot be offered for sale. Section 92 looks innocuous until one looks at the definition of a moneylending agreement which covers all sales on credit at a person's doorstep. It means, effectively, that business becomes illegal because if one sells an anorak, for example, on the doorstep it comes under the extended definition of a moneylending agreement.
There are two separate elements encapsulated in what Deputy Bruton and I have said. I gave a lot of thought to this matter and I discussed it at length with the collected credit people. It would be preferable if one could keep the two transactions separate so that moneylending could be engaged in by people who, often quite legitimately, sell goods also, so that there would not be linkage with the cash advance. People can make a linkage, wondering if they will be able to borrow money again if they do not buy. The linkage is not just at the point of transaction but generally between the sale of money and the sale of goods.
Deputy Quill's amendment meets these concerns by breaking the linkage between cash advanced and goods being offered.
Yes, cash advanced at that transaction.
If I make my money from selling anoraks on credit around Ireland then under the Bill's definition of moneylender I am a moneylender if I come back every month to collect money. The Minister is saying that if on the day I collect money for the anoraks the customer asks for another of the anoraks or I offer trousers for sale I cannot sell and collect at the same time. This would mean that such travelling salesmen would be wiped out.
I thought about a solution for this but it sounded too "Gilbert and Sullivan-esque"— one could collect the money and then go down the garden path and come back up again. Who would police that? I wanted to break the linkage which exists——
Deputy Quill's amendment does that.
For that transaction, so to speak. I am not averse to it but I am not entirely happy with it. I am not a mullah trying to decide everything for everybody. It often suits people to buy goods at the door on a deferred payment basis and I know many of my constituents who do it and have satisfactory arrangements. I recognise that with the best will in the world there can be an implied imperative and linkage to the person seeking money between the sale of money and the sale of goods.
I accept that but we are stuck in it, for good reason. The definition of a moneylending agreement was extended to an agreement for the supply of goods on a deferred payment basis away from one's business premises. It does not apply if one gets credit in Clery's,for example, but where someone comes to the door it must fall into the category, otherwise there would be a ridiculous distinction between people who deal in money alone and people who deal in money's worth.
I accept the logic of the extended moneylending agreement but, as it stands, section 92 means that if I go to the Minister's house to sell anoraks and come back a month later to collect money for them and the Minister asks me for another anorak or a pair of trousers, I cannot sell them because it would be illegal.
How does the cooling off period operate in such instances of back to back transactions?
It does not apply.
If somebody decides to back out of the moneylending agreement they are stuck with paying for the goods because it is not a hire purchase arrangement. Such business cannot be conducted on hire purchase pending cooling off. Having listened to Deputy McDowell, my amendment does not satisfactorily meet the requirements. Deputy Quill's amendment deals more directly with the issue.
My real worry is that this issue affects a whole business sector and hundreds of jobs. If section 92 is not altered that business will be wiped out and travellers all over the country will have to give up their business.
I am not disinclined toward the amendment but the issue is a little more subtle than Deputy McDowell has suggested. Deputy Quill's amendment states: "A person on the occasion that a cash advance is made...shall not sell or offer for sale. ...". If goods are sold subject to a credit agreement there is a possibility that there would be no cash advance. Is Deputy Quill referring to the cash advance of a moneylending agreement which would be ongoing at the same time?
On 14 February the Minister said that she wished to deal with one precise situation. The Minister did not want goods to be sold in the wash of euphoria created by——
——getting the money.
This proposal is framed to meet that anxiety. If somebody is being given money the person cannot be sold goods on the same occasion.
I accept that it meets that need and the euphoria of having cash in hand. However, the linkage still bothers me but I cannot see how I will avoid that linkage.
Logically, the Minister is driven to choosing something like section 92 as proposed by Deputy Quill or, alternatively, abandoning the definition of moneylending agreement.
The extended definition.
Yes. The Minister wants to protect people from making unwise decisions when they have an unusually large sum of money available to them. If somebody is given £300 by a friendly lender and then is offered anoraks at 9.30 in the morning——
May I put the opposite case? It is equally pressurised selling if somebody arrives with glossy goods and says: "You buy this and I will organise the credit". However, this amendment deals only with a cash advance.
Regardless of whether it is pressurised selling it is a way of life for many people.
I understand that.
It is not a terrible evil. There is a logic to this. Take, for example, the situation where somebody who lives a long distance from Roscommon goes into the draper in the town and seeks credit to purchase a dress or anorak or whatever. The draper has no means of calling out to or checking up on that person. The draper must either know the customer or refuse to give credit. The system whereby somebody gets into a routine of visiting people's homes has a far better payment record because they can go back again and again to get their money and to sell goods. Obviously the Minister is concerned that the customer will not get as good value, perhaps, on certain occasions.
It also defeats the cooling off period because people are committed to purchasing the goods. The cooling off period is a dead letter because there is no other way of paying for the goods.
That is true. However, a cooling off period when purchasing clothes is almost impossible. One cannot hand back a pair of shoes.
It is not like buying tables or chairs. I am not averse to accepting the amendment, but it does not meet fully what I really wanted. I wanted to ensure that people would not engage in impulse buying as soon as they receive their money — money that is required at the time for other necessities. However, impulse buying would be covered by this amendment. When the person received the cash he or she could not engage in a splurge when shown the glitzy goods. The linkage is still there but I have come to the conclusion that one cannot do anything about it. This is something people will do.
The Minister would have to ban the trade completely.
I do not want to ban the trade. Many people live that way and are able to manage their lives by being able to get the goods at their door on deferred terms and through collection of payments. One might wish that it was unnecessary but it continues to suit people.
I have gone over this matter with officials and have discussed it with other people. On balance, Deputy Quill's amendment is reasonable and most suits my needs in what I want to do.
If it is defective I would welcome an improvement. However, it is an improvement on section 92.
It is. I had informal discussions with Deputy Quill about this matter. I told her my fears and I also told her that if she devised an amendment which met those fears I would be prepared to look at it.
She has done her best.
Yes. I have given it some thought and, although I am not entirely happy, I am happier with the amendment than without it.
Amendment agreed to.
Amendment No. 236 not moved.