Amendment No. 10 is an alternative to amendment No. 9 and they may be discussed together.
SECTION 10.
I move amendment No. 9:
In page 10, between lines 4 and 5, to insert the following subsection:
"(7) Where a brochure was first made available to consumers generally before 1995, no liability should arise under this Act in respect of an identical brochure being made available to a consumer at any time.".
There is concern in the trade that there may be brochures in circulation prior to the enactment of this Bill. This amendment would ensure that members do not inadvertently contravene the provisions of the Bill, when it becomes law, by using brochures which may be on their premises from an earlier season. This situation could arise in relation to brochures of foreign or specialist tour operators which publish brochures infrequently and in small numbers. I would like to hear the Minister's views on this concern. Does he think it is legitimate and can he accept the amendment?
My amendment is the same as Deputy Molloy's except that I have specified June 1995 whereas his refers just to 1995. I was more specific because, if the Minister accepts my amendment, the industry would have until June 1995 to clear their brochures. The industry would not be held responsible under the Bill for brochures issued before June 1995 as they are already in circulation and to insert an exclusion would ensure the legislation was not retrospective. The aim of these amendments is to make certain that the industry and the consumer have due warning of the legislation and that it does not affect conditions existing ' before the legislation comes into force. I do not think it is the Minister's intention to apply the Bill to brochures at present in the marketplace for the 1995 season but the Bill does not make this clear. The purpose of the amendments is to ensure that there is no retrospection in the legislation and that it applies to future brochures.
If we accept either of these amendments, we would be giving an opportunity to people in the trade to effectively bypass the legislation with identical brochures. They could say that any brochures made available prior to 1995 could be used in that fashion in 1996, 1997 or 1998. If we pass either of these amendments, we will give carte blanche to organisers to bypass the legislation. In any case, if there is an inadvertent use of a brochure which would contravene the legislation, there is a defence under 11 (2) in relation to showing that a retailer did not know, and had no reason to suspect, that the brochure contained false or misleading information. These amendments, if accepted, would do more harm than good.
These two amendments are connected to an earlier amendment to section 1 about a lead-in time of three months from the implementation of the Bill. The amendments deal with the issue of retrospection. In other words, the concern is about what would happen if, after the Bill comes into operation, a consumer goes into a travel agent and picks up a brochure which was issued before the Bill became law. When the Bill is enacted, the Department will contact travel agents and tour operators and draw their attention to the new requirements.
During the lead-in implementation time, for example, three months or whatever it may be, the onus will be on travel agents to ensure that they stock only brochures which comply fully with the new requirements. They will be in breach of the Bill if they carry out-of-date brochures following its enactment. In fixing the date for the commencement of the Bill, the objective will be to ensure that the lead-in time is adequate to enable the travel trade to get its house in order. In the interests of consumers, it would not be reasonable for it to exceed approximately three months.
Previous and current brochures should be excluded. Three months is not a short timeframe for brochures currently in circulation. This is expensive documentation and further costs will be imposed on travel operators. This year's brochure should be exempt as there are hundreds currently in circulation; I see them in windows of travel agencies all over the place. It is a further cost, given that they are expensive glossy brochures which are well put together. In fairness, the travel trade is entitled to a moratorium of a longer period than three months with regard to brochures.
There will be consultation with the travel trade about the appropriate lead-in time. There is no perfect time, in terms of a cut off point, which would facilitate everybody. The procedures of the brochure have plenty of knowledge of the general content of the Bill and what will be required in terms of their new brochures. The brochures coming out for next year's travel, which will be available in the early autumn, should have the up-to-date information. However, we will consult the travel trade about the best implementation time. Various parts of the Bill can be implemented at different times. We will consult the travel trade to ensure that they are not discommoded, but we must balance that with introducing the protection for the consumer as quickly as possible.
I do not understand how the Minister can state that the travel trade is aware of the requirements of the Bill when the House has not yet completed its deliberations and the Bill is not enacted. It is wrong of the Minister to assume that somebody who will be affected by the Bill when it is passed should apply all its requirements without knowing what the final Bill will contain. This is putting an unreasonable onus on the trade, to put it mildly. Nobody in the trade can assume what is in the Bill until it is passed by the House. We do not even know if the Bill will be passed this year. We know nothing about it except what Stages it has gone through. The minimum the Minister should do to protect the trade against the type of situation which could arise if this amendment is not accepted is to agree there is a danger to the trade in that regard. I appeal to the Minister to accept the amendment.
I said that the Department will contact travel agents when the Bill is enacted. Nevertheless, the travel trade is aware of the generality of the Bill and its direction. By and large, the Government and Opposition agree on the main terms of the Bill. This is evident from the amendments which have been tabled and the level of agreement reached so far. I did not intend to preempt the deliberations of the Oireachtas in any way by suggesting that the travel trade knew what was in the Bill before it was enacted.
I wish to be clear about what the Minister is saying to the committee. I have no wish to press the amendment if the Minister is saying that he does not wish to have any element of retrospection, that he understands the position and will make arrangements to ensure that existing brochures will not be covered by the legislation and that there will be regulations or orders to deal with this matter.
I would accept the position if the Minister, without accepting the amendments, states that he will make arrangements to ensure that there could be no recourse to the courts about brochures which are currently in the marketplace or, as I intended in my amendment, brochures which are identical to those produced now rather than in the future. I wish to be clear that this is what the Minister is saying.
That is what I am saying. There will be no retrospection and we will make arrangements that existing brochures will not be the cause of anybody being sued because they did not contain certain matters. We will agree a cut-off point with the travel trade as the best date for implementation. There will be a requirement after that date to have new brochures and to get rid of the old ones.
The Minister earlier undertook to consider the three month cut-off date. Perhaps he will also consider it in this context. Rather than discuss it with the trade, perhaps the Minister could come back to it on Report Stage. Having deliberated on the matter, he could then tell us that he had chosen a particular date as a cut-off point. To take the tenor of Deputy Molloy's comments into account, it would be fairer to the Houses of the Oireachtas to tell us before the Bill is passed, rather than negotiate it with the trade afterwards.
The Deputy has unfairly taken my remarks out of context. I said we would consult the trade after the Bill is enacted, not beforehand. Any impression which might be given by the two Opposition Deputies that I am trying to downgrade the Oireachtas in any sense is nonsense. They know it is nonsense and they are deliberately putting it forward as a piece of nonsense. Following enactment of the Bill, we will discuss with the trade the best date for the introduction of the requirement for new brochures. We will also discuss other aspects of the Bill with the trade after the Bill's enactment.
I find the Minister's attitude strange. I am aware of the arithmetic of the Oireachtas, but the Minister would prefer if Opposition Deputies did not press amendments——
It is up to them.
——which seek clarification on foot of an assurance from the Minister that he will have a deal with the travel trade when the Bill is passed. This is a deal to which we have no access. How are we supposed to make a decision on an amendment before us today on foot of an assurance from the Minister about a private arrangement he will make with the trade after the Bill is passed? This is equally nonsense, to use the Minister's phrase.
It has been a very good debate and we are making progress. I would like that to continue.
If I said I would not discuss the best implementation date with regard to aspects of the Bill which affect the trade directly, I would be accused of ignoring the trade and its requirements. In deference to Opposition spokespersons points', I said I will do that. The Opposition is pressing me to do this. However, when I say I will do it, I am accused of bypassing the Oireachtas.
Can the Minister do it before Report Stage?
I did not say anything about Report Stage; I said when the Bill is enacted.
If the Minister did it before Report Stage, he could tell us on Report Stage.
If I do it before Report Stage, it would be before the Bill is enacted and Deputy Molloy would accuse me of bypassing the Oireachtas and making private deals with people about the legislation before it is law. I am not sure how I can satisfy both points which have been made. I told the Deputy what I intend to do and it meets the case he made.
I have not accused the Minister of anything; I merely indicated what I considered the weakness of his argument, depending on the knowledge the trade had in regard to what might or might not be in the Bill. He assumed that certain things would be in the Bill. I am not accusing the Minister of anything, but it is a weak position on which to argue his case.
This is an important section because it places a criminal liability on people in the travel trade in regard to what is contained in brochures printed and circulated before the implementation of this Bill. There should be an exclusion section to ensure that it does not apply to brochures printed and in circulation prior to the implementation of this Bill. That is the purpose of the amendment which states: "Where a brochure was first made available to consumers generally before 1995, no liability should arise under this Act in respect of an identical brochure being made available to a consumer at any time."
Because criminal liability is involved, there are serious implications for the trade in this regard. I have dealt with legislation long enough to know that a ministerial commitment during a debate is not law or binding. It is our duty to ensure that what we pass is fair. To ensure that this legislation is fair and that people do not inadvertently contravene the legislation, the Minister should accept the amendment. If he does not, I will press it.
The travel trade and everybody else have had access to the directive in this case for over two years so they know what is required. If I accept the amendments with the words "at any time" it would mean a travel agent could put forward old brochures forever without any cut- off date. There is a basic flaw in the amendments in that regard.
I am satisfied that following enactment and discussion with the trade and anybody else, including the consumer who has a primary interest, we will arrive at a date in a number of months to allow it to come into play thus giving them the time they required without any retrospection. There would be no reason for existing brochures to be available to the public from then on. I am satisfied with the section as it stands.
The intention of the two amendments is clear, that nobody should be prosecuted for something produced prior to the enactment of this legislation. The amendments as proposed are openended and would bypass the intent of this legislation, which is to put in place the best practice in relation to retailers and organisers of package holidays. The amendment states that "no liability should arise under this Act in respect of an identical brochure", that is, a brochure produced prior to the enactment of this legislation, or June 1995, as is the case in Deputy Brennan's amendment. It could be an identical reproduction which could be made available to a consumer at any time in the future because there is no cutoff date.
While I recognise the intention behind the amendments, it is not reflected accurately in the amendments. If we accept these amendments, we would make the situation much worse. As the Minister said, he has no intention of seeing anyone prosecuted because of the terms of the legislation. In section 11 (2) a substantial defence is presented in that any retailer or organiser can say that they did not know or had no reason to suspect that the brochure or other descriptive matter contained information which was false or misleading. There is a defence for anybody who inadvertently finds themselves producing literature which was on a shelf gathering dust. The amendments have litle merit and it would be wrong to accept them.
Amendment put and declared lost.
I move amendment No. 10:
In page 10, between lines 4 and 5, to insert the following subsection:
"(7) Where a brochure was first made available to consumers generally before June, 1995 no liability shall arise under this Act in respect of an identical brochure being made available to a consumer at any time.".
Amendment put.
The Select Committee divided: Tá, 9; Níl, 13.
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Tá |
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Byrne, Hugh. Callely, Ivor. Kitt, Tom. Leonard, Jimmy. Molloy, Robert. |
Nolan, Michael J. Ó Cuív, Éamon. O'Keeffe, Ned. O'Rourke, Mary. |
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Níl |
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Bell, Michael. Boylan, Andrew. Browne, John (Carlow-Kilkenny), Costello, Joe. Crawford, Seymour. Creed, Michael. Finucane, Michael. |
McGinley, Dinny. McGrath, Paul. Penrose, Willie. Ring, Michael. Sheehan, P. J. Stagg, Emmet. |
Amendment declared lost.
Section 10 agreed to.