Consumer Protection Bill 2007 [Seanad]: Committee Stage.

SECTION 1.

I move amendment No. 1:

In page 9, subsection (1), line 19, after "Protection" to insert "and Unfair Commercial Practices".

The purpose of the amendment is to extend the scope of the Bill and ensure unfair commercial practices are specifically included.

While I have sympathy for the intent of the amendment, I do not propose to accept it, as it would make the Short Title of the Bill too long. The original Title of the Bill, when published in August 2005, was the Consumer Protection (National Consumer Agency) Bill. The reference to the National Consumer Agency was subsequently removed to keep the Title compact. Substantial legislation such as this necessarily does a number of things and if we were to include all of them in the Short Title, it would end up being similar to the Long Title. I am satisfied that the words "Consumer Protection" adequately encapsulate the nature and purpose of the Bill's provisions.

Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.

Amendments Nos. 2 and 5 are related and may be discussed together.

I move amendment No. 2:

In page 10, subsection (1), to delete lines 13 to 15 and substitute the following:

" "Consumer" means a natural person (whether in the State or not) who is acting for purposes unrelated to the person's trade, business or profession, except where the person's trade, business or profession is deemed to be a small enterprise under this Act in which circumstances the person, or their company shall be treated as a consumer;".

The purpose of the amendments is to demonstrate that SMEs are also consumers and to find a mechanism to ensure there will be no duplication in the system we put in place. I am seeking to ensure small businesses will not be subject to existing regulators and the National Consumer Agency, or a double whammy as it were. Second, they should be seen as consumers with regard to the supply of goods and services to them. They should not be over-burdened. Amendment No. 5 defines a small enterprise as one which employs five people or less or has a specified turnover, whereby it would come under the scope of the regulations.

The amendments would bring enterprises employing fewer than five people or having a turnover of less than €2 million within the scope of the Bill. The principal reason I cannot accept amendment No. 2 is that it is contrary to the definition of "consumer" as set out in the unfair commercial practices directive. Furthermore, such a change would enable small enterprises to bring complaints to the National Consumer Agency and oblige it to investigate and act on those complaints. The NCA is a new body whose statutory responsibilities will go considerably beyond those of its predecessor, the Office of the Director of Consumer Affairs. While I am committed to ensuring the agency will have adequate resources, it will face considerable demands on those resources if it is fully to discharge the mandate set for it in the Bill. There would be a significant additional load on the agency if the amendment was accepted. Moreover, it causes some concerns that it could blunt the agency's focus on consumer interests and welfare. Situations could well arise where the agency was simultaneously investigating or taking proceedings against a trader for his or her practices towards consumers and acting on behalf of that trader in his or her dealings with other businesses. This would not be conducive to the development of a coherent sense of purpose on the agency's part.

We will deal later with the avoidance of duplication, double jeopardy and so forth. They are legitimate points.

When I tabled the amendments, I did not have the benefit of seeing the Minister's amendments to the other sections with which we will deal. I am satisfied we can deal with them later.

Amendment, by leave, withdrawn.

Amendments Nos. 3 and 4 are related and may be discussed together.

I move amendment No. 3:

In page 10, subsection (1), to delete line 33 and substitute the following:

" "existing enactments" means the following enactments, to the extent to which those enactments confer functions on the Director which are transferred to the Agency pursuant tosection 37”.

As is clear from Schedule 1 to the Bill, the Director of Consumer Affairs exercises functions under a wide range of enactments, many of which are enactments for which other Departments and bodies have primary responsibility. On the establishment day of the National Consumer Agency the functions vested in the Director of Consumer Affairs by or under the enactments listed in Schedule 1 will be transferred to the agency. The purpose of the amendment is to clarify that the transfer of functions to the NCA under the enactments concerned applies only to the extent that those enactments confer functions on the Director of Consumer Affairs. This is to remove any doubt that the agency might have other or more general functions under the food safety, financial services or other legislation listed in Schedule 1. The amendment proposed to the definition of existing enactments means that the qualification in paragraph (a) dealing with food legislation which served a similar purpose is no longer necessary and is removed by virtue of amendment No. 4. It is a technical amendment to ensure we do not ascribe functions to other bodies which they do not have.

Amendment agreed to.

I move amendment No. 4:

In page 10, subsection (1)(a), lines 35 to 37, to delete all words from and including “in” in line 35 down to and including “section 37,” in line 37.

Amendment agreed to.
Amendment No. 5 not moved.
Question proposed: "That section 2, as amended, stand part of the Bill."

Will the Minister clarify the definition of "invitation to purchase"? Does he have examples that would provide greater guidance for businesses concerning the meaning of "invitation to purchase"?

The definition is included in the unfair practices directive and we cannot stray from it under the maximum harmonisation mechanism.

Therefore, the Minister is obliged to do so, whether he likes it, under the unfair commercial practices directive.

Question put and agreed to.
Sections 3 to 7, inclusive, agreed to.
SECTION 8.

I move amendment No. 6:

In page 15, subsection (1), between lines 19 and 20, to insert the following:

"(b) to assist individual consumers in enforcing their rights under this Act,”.

The purpose of the amendment is to give the consumer rights, other than by way of prosecution. It would be disappointing for consumers to be told that the Director of Consumer Affairs could not assist their individual complaints except by way of prosecution. As a result, one might lose consumer support since the only option is prosecution

I understand the motivation behind the amendment. It is worth pointing out, however, that section 8 provides the agency with comprehensive functions to promote and protect the interests and welfare of consumers. In addition to various functions, including information, research, advocacy and education, the Bill provides the agency with a much-enlarged suite of enforcement options, building upon the existing enforcement functions of the Office of the Director of Consumer Affairs. These additional functions will enable the agency to achieve compliance with the Bill by novel methods such as fixed payment notices, compliance notices and obtaining undertakings. Section 79 also entitles the agency to apply to the courts for compensation orders against traders convicted of offences under the Bill, on behalf of consumers who have suffered loss arising from those offences.

Section 72 provides consumers with a right of action before the courts for relief by way of damages against traders engaging in practices prohibited by the legislation. The effect of the amendment might be to place a statutory obligation on the agency to assist any and all consumers who would wish to pursue a claim for damages under that section. Our view is that this would be inappropriate, given the likely impact that such a provision would have on the agency's workload and resources. I am confident that the functions proposed for the agency under the Bill will ensure consumers' interests and rights, both collectively and individually, are protected to the highest degree. We think the balance struck in the Bill is the correct one, otherwise one could have a scenario whereby thousands of cases would be pursued. Ultimately, we want to arrive at a situation where it develops best practice.

I accept the general principle of what the Minister is offering in that regard.

Amendment, by leave, withdrawn.

Amendments Nos. 7, 16, 18 and 24 are related, while amendment No. 17 is a logical alternative to amendment No. 16. They may all be discussed together.

I move amendment No. 7:

In page 15, subsection (1), between lines 30 and 31, to insert the following:

"(f) to report to the Oireachtas on an annual basis on the impact of actions or policies of the State or State agencies on consumers in Ireland and to suggest such changes, modifications or alterations as may be required in the interests of better protecting the interests of consumers.”.

The purpose of this group of amendments is to ensure we would obtain appropriate scrutiny of what the National Consumer Agency is doing and that its chief executive and others could appear regularly before this committee to account for their stewardship. Amendment No. 7 concerns the capacity of the National Consumer Agency to draw attention to any State policies which may be proposed or are being implemented, that are not in the best interest of consumers. The agency would have a view on that notwithstanding the fact the Executive will continue to make proposals and the Oireachtas will continue to have the role of adopting them. The National Consumer Agency should be able to express a view on proposals being brought forward by the State on behalf of consumers which might not be in their best interest. For example, it might have a view on the 2% levy on insurance premia. The report of an Oireachtas committee has recommended its abolition. That may not necessarily be implemented but the agency should have the opportunity to makes its view known.

We have often talked about the inadequate amount of attention given to reports from Oireachtas committees. We want to enshrine in legislation the opportunity for strategy statements to be presented to the Oireachtas committee; for the Estimate for the National Consumer Agency to be presented to the committee; and for the committee to get the support of the Minister in a credible and reasonable way in respect of any observations and comments its wishes to make to the agency.

All these amendments concern the accountability of the National Consumer Agency to the Oireachtas. It is critical there is proper accountability. I am mindful of the comments made by Deputy Hogan on Second Stage when he raised this issue. I propose amendment No. 16 which is in direct response to his comments on the wording in the Bill. It proposes to amend section 17 to ensure that the new agency is fully accountable to the Oireachtas. It states:

In page 23, before section 17, to insert the following new section:

17. — The chief executive shall, whenever required to do so by —

(a) a committee appointed by either House of the Oireachtas, the business of which committee includes examination of policy relating to consumer protection and welfare, or

(b) a committee appointed jointly by both Houses of the Oireachtas, the business of which committee includes examination of such policy,

attend before such committee to discuss the general activities of the Agency.".

That gives as broad an accountability facility as possible.

The agency should be accountable to the relevant Oireachtas committee which, in this case, is this committee. This is similar to the precedent created for the Competition Authority. The same provision applies. This amendment would ensure the agency is fully accountable to the Legislature. It is an alternative to Deputy Hogan's amendment to section 17.

On the other issues Deputy Hogan raised, the agency will have the right to advocate against Government charges or lobby Departments and the regulators. The co-operation agreements will be developed between the regulators. One of the agency's core activities will be that of advocacy, which applies to the public and the private sectors. We envisage it will have things to say about Government legislative proposals and on actions by the Executive in so far as they affect the consumer, and that is irrespective of who is in power at any given time.

One of the Deputy's amendments dealt with how to take the Oireachtas committee's views into account in respect of a strategy statement. There is an issue of independence here and we need to protect the independence of the board from either the Executive or the Oireachtas. The committee cannot write the strategy; the board must do so. However, the committee can offer its views to the agency. The issue is achieving a balance.

In amendment No. 18, I suggested a way in which one could do so. It states: "As soon as practicable after a strategy statement has been submitted to the Minister undersubsection (1), the Agency shall cause a copy of the strategy statement to be presented to an Oireachtas committee”. This does not mean the Oireachtas will be responsible for devising the strategy statement or drawing it up. Rather, the committee will receive the statement and will have responsibility to review its contents and the Estimates relating to the National Consumer Agency. The amendment provides some certainty.

Is the Deputy stating the Department shall take account of the observations, comments and views expressed?

The Department is supposed to take account of everything.

Section 20(4) states:

As soon as practicable after a strategy statement has been submitted to the Minister undersubsection (1), the Minister shall cause a copy of the strategy statement to be laid before each House of the Oireachtas and the strategy statement shall be published in the form and manner that the Agency considers appropriate.

The Deputy's amendment suggests use of the phrase "shall take account of the observations, comments and views expressed". Does this mean the strategy statement must be changed immediately or will it lead to delays?

I am sure the Department takes account of every strategy statement it receives.

However, it is not the responsibility of the committee to write the strategy statement of a body independently set up by the Oireachtas.

No, that is not what the amendment says.

There is a danger that it could lead us into such territory.

There would be a terrible danger of the Department being led in that direction.

Neither should the Minister have that role and nor does he have it. The Deputy raised this matter on Second Stage and I accept that the original wording was limited.

I acknowledge that the Minister has gone some way towards addressing my concerns about the accountability of the chief executive. There can be occasions on which chief executives do not like to come before Oireachtas committees and on which they may refuse to do so. It was for that purpose, and in the interests of bringing about certainty, that I tabled my amendment. Amendment No. 16 in the name of the Minister represents a sort of halfway house approach.

Amendment, by leave, withdrawn.

Amendments Nos. 8, 19, 20, 22, 38, 29 and 73 are related and will be discussed together by agreement.

I move amendment No. 8:

In page 15, between lines 30 and 31, to insert the following subsection:

"(2) This section and the other provisions of this Part are without prejudice to section 92 (respecting the concurrent vesting in the Central Bank and Financial Services Authority of Ireland of certain functions under this Act).”.

Amendment No. 8 is important. This section and other provisions of this part of the Bill are without prejudice to section 92 in respect of the concurrent vesting in the Central Bank and Financial Services Authority of Ireland of certain functions under the legislation. The committee will be aware that on Second Stage I indicated my intention to insert provisions in the Bill to provide the Financial Regulator with parallel powers in respect of enforcing the prohibitions on unfair commercial practices relating to the financial services sector. I am satisfied that inserting such provisions in the Bill would be prudent, particularly in light of the Financial Regulator's statutory responsibility in respect of promoting consumer interests in the financial services sector. I am also satisfied that the Financial Regulator has a particular expertise in the financial services sector which it is not reasonable to expect should be replicated within the National Consumer Agency.

The proposed amendments will amend the Central Bank Act 1942 to make the enforcement of the unfair commercial practices provisions detailed in sections 41 to 47, inclusive, and 49 to 54, inclusive, a statutory function of the bank and, in the case of regulated financial service providers, the consumer director of the Financial Regulator. The amendments also provide the regulator with powers of investigation in respect of breaches of the UCPD provisions.

The Central Bank legislation will be further amended by the incorporation in it of those provisions of the Bill relating to seeking prohibition orders from the courts, accepting undertakings from traders, which is dealt with under section 71, issuing compliance notices to traders, which comes under section 73 and issuing fixed payment notices relating to particular offences, which is dealt with in section 83. The proposed amendments would allow the Financial Regulator to apply to the courts for compensation orders against traders convicted of offences under the Act on behalf of consumers who have suffered loss or damage. They will also allow the regulator to request the courts to order a financial service provider convicted of an offence under the Act to publish a corrective statement. The Financial Regulator will also be empowered to maintain and publish a list of those financial service providers against which enforcement procedures have been initiated. The amendments also provide that the regulator may prepare and publish guidelines applicable to regulated financial service providers in respect of matters of consumer protection and welfare.

While I am satisfied of the need to provide the Financial Regulator with the parallel powers outlined, I am also conscious of the need to ensure there will be no duplication of activities on the part of the regulator and the National Consumer Agency in the financial services area. To that end, I am specifically including a provision that the enforcement of the new unfair consumer practice directive, UCPD, provisions of the Bill with regard to regulated financial services providers shall be subject to a co-operation agreement between the regulator and the NCA, as provided for in section 21. In this regard, the amendments proposed concern the specific reference in section 21 to the Financial Regulator as a body with which the agency shall enter into a co-operation agreement.

Deputies will recall that section 21 provides that co-operation agreements shall include provisions enabling parties to agreements to forbear from performing any of their functions in circumstances where they are satisfied that another party to the agreement is performing those functions. Co-operation agreements will be required to include specific provisions ensuring a person cannot be the subject of an enforcement under the Act by more than one of the parties to the agreement. I am satisfied, therefore, that the insertion of these amendments will ensure there will not be a double regulation of the financial services sector in the enforcement of the important UCPD protections provided for in the Bill.

The amendments also include a further specific provision amending the Central Bank Act 1942 to allow the bank and the Financial Regulator to disclose certain information to the NCA. This provision is essentially the reciprocal to section 31, which allows the NCA to disclose information to certain bodies. Section 31 is also being amended by the insertion of a specific reference to the Financial Regulator. The effect of the amendments will be to allow the agency and the Financial Regulator to disclose information to each other on suspected breaches of the UCPD provisions of the Bill as they relate to financial service providers.

Provision has been made to amend the Central Bank Act 1942 to assign to the bank and the consumer director of the Financial Regulator parallel functions given to the agency under the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995. The effect of this amendment will enable the Financial Regulator to apply to the High Court for orders prohibiting the use of terms in contracts which the court adjudges to be unfair. The insertion of this provision will allow for the effective enforcement of these regulations in the financial services sector.

I am satisfied the amendments proposed will provide the necessary certainty in the enforcement of the UCPD provisions of the Bill and of the regulations on the unfair terms in consumer contracts where financial service providers are concerned. The amendments also set out the basis on which the agency and the Financial Regulator will work together to ensure consumers and financial services providers can enjoy the significant protections provided for in the Bill. I commend the amendments to the committee.

This amendment has the capacity to be a problem for the National Consumer Agency and the Financial Regulator unless the agreement mentioned by the Minister makes clear who is in charge of what. I am interested to know who will have primacy in the legislation. Is it the Minister who will adjudicate in the event of a dispute between the Financial Regulator and the National Consumer Agency or what will happen if adjudication is required in respect of an issue? While the amendment could generate unnecessary duplication, it could also give rise to problems where a consumer looks for a particular financial matter to be sorted out. Who will have the primary responsibility in that regard or which agency will win out on the issue under dispute? Parallel powers for the Financial Regulator and the National Consumer Agency create uncertainty. Will the Minister elucidate further on this?

There is an issue and we have had significant discussions with the Financial Regulator, the National Consumer Agency, the Department of Finance and interested representatives of the financial services industry on it. A key part of our agenda was the prevention of the potential for double jeopardy, and this is provided for in the Bill.

The unfair commercial practices directive does not give us much room for manoeuvre in terms of encompassing the financial services sector within the overall edifice of the Bill. That being so, we must ensure we have provisions in the Bill to avoid duplication and the potential of double enforcement. The Bill states there will be an agreement between the two. The intention is that the Financial Regulator will have the primacy role in terms of enforcement. As part of its wider remit, the consumer agency would wish to have a general advocacy role on consumer law including financial services. In other words, we do not want this legislation to tie the hand of the consumer agency or take an entire legitimate sector from its overall remit of research, information, communication and advocacy, which are very important aspects of the agency. If that were the case, the same could be done in other sectors with regulators in place. Ultimately, it would destroy the entire edifice on which the consumer agency is built.

There are examples where agreements have already been successfully entered into by the Financial Regulator and other bodies, for example with the Competition Authority. The Deputy has focused on this issue in a different context. That we have a number of agencies such as these means that co-operation agreements like this must be the norm for the efficient conduct of business.

In the event of an issue being investigated in the financial services area, we expect certain obligations on the national consumer agency where redress is sought on behalf of the consumer. In such cases, is the Minister indicating that the primacy of the matter will rest with the Financial Regulator rather than with the National Consumer Agency?

That is the intention subject to agreement being reached.

As the Minister has referred to the intention, he is clearly somewhat unsure.

I cannot pre-empt the agreement subsequent to the Bill being passed by the Oireachtas.

Would it not be better to enshrine it in the legislation rather than depending on—

One cannot take from the agency. The unfair commercial practice directive is a maximum harmonisation measure. If it were not for that provision, the financial services sector could be excluded totally. Even without the unfair commercial practice directive, I do not believe it would be a good idea to do that anyway. Before Report Stage I will reconsider whether we should insert a provision allowing the Minister to call it ultimately.

The Minister would be correct to reconsider it because it will create some uncertainty and the possibility of a turf war between one agency and the Financial Regulator. It will create uncertainty about any issue the consumer may have.

The worlds are blurring also. As the Deputy knows, certain retail outlets offer financial services in essence even though they are selling loaves of bread. The buying and selling of cars can be allied to financial services. It is hard to know where to draw the line from the consumer agency's point of view. It is not the intention for the consumer agency to be involved in the financial industry, which will be a matter for the consumer director of the Financial Regulator.

The legislation states: "There shall be a co-operation agreement". Although this matter has not arisen in other sectors, the only issue could be if they failed to reach an agreement. We have considered this. The danger is that people have the option to leave all the difficult issues for the Minister. I will revert to the Deputy on Report Stage on the matter.

Amendment agreed to.

Amendments Nos. 9 and 72 are related and may be discussed together by agreement.

I move amendment No. 9:

In page 16, subsection (2), between lines 43 and 44, to insert the following:

"(m) shall promote and encourage the establishment by a trader or traders, whether generally or in respect of a particular service or services, of quality assurance schemes, that is to say schemes the purpose of which is—

(i) to maintain and improve the quality and reliability of the service or services provided to consumers, and

(ii) to enable consumers to identify traders who meet the requirements of the scheme concerned,".

This amendment arises from an amendment tabled in the Seanad by Senator Coghlan, which I undertook to consider. The Senator's amendment proposed that the national consumer agency may establish a good practice provider quality mark and that such a mark would be awarded to suppliers of goods and services who agree to be bound by a code of practice. I indicated that I had sympathy for some of the points he articulated. I agree with the Senator that quality marks or assurance schemes have an important role to play in getting traders to commit to operating to a high standard of service and enabling consumers to identify traders who have made such a commitment. This amendment would give the NCA the function of promoting and encouraging quality assurance schemes either generally or in respect of a particular service or services. I am supplementing this provision by the proposed amendment to section 88 to empower the agency to issue guidelines on the establishment, form and operation of quality assurance schemes. Matters relating to the quality of service provided for consumers can also be covered by the provision of section 86 which permits bodies representing traders to submit a code of practice to the National Consumer Agency for review and approval. Taken together, these provisions constitute a significant acknowledgement of the role and potential of quality assurance schemes.

The quality mark amendment originally tabled in the Seanad by Senator Coghlan forms part of amendment No. 49, which will be considered by the committee today. When Senator Coghlan's amendment was discussed in the Seanad, I outlined the reasons I could not accept it in the form in which it was set out. I explained that there could be a conflict of interest between the role of the agency in giving a quality mark to traders and businesses and the role it would subsequently have, on foot of transgressions in the law, in prosecuting some of the traders to whom it had given a quality mark. I am not comfortable with that idea. I can accept the proposition that the agency should promote and encourage the establishment by traders, whether generally or in respect of a particular service or services, of quality assurance schemes to maintain and improve the quality and reliability of the service or services they provide for consumers. It would not be appropriate for the agency to assist consumers to identify those traders who meet the requirements of the quality assurance schemes. We are meeting many of Senator Coghlan's demands.

I thank the Minister for making a considerable effort to enact the provisions of the amendment tabled by Senator Coghlan in the other House. The manner in which the amendment is phrased is acceptable to me.

Amendment agreed to.

As amendments Nos. 10 and 57 are related, they may be discussed together.

I move amendment No. 10:

In page 16, subsection (2), between lines 46 and 47, to insert the following:

"(n) to advise, as necessary on the effectiveness of redress schemes available to consumers and in particular to review the jurisdictional limit of the Small Claims Court service in the District Court on an annual basis, and to make such recommendations on raising this limit, or related matters to the Minister for Justice and the Courts Services, or related bodies.”.

The purpose of these amendments is to examine the jurisdictional limit of the Small Claims Court under sections 8 and 73. Much more could be done to help consumers who should be able to avail of the services of a lesser jurisdictional regime, rather than having to go to the District Court or the Circuit Court, to seek redress and a fair outcome. Amendment No. 57 proposes to increase the limit in the definition of "small claim" to €10,000 from the current low limit of €2,000. When the Small Claims Court was established some years ago, its role was to allow people with low incomes or no incomes to engage in an inexpensive form of arbitration with a view to obtaining redress on foot of certain consumer problems. I am calling for a review of the court's jurisdictional limit for that reason. Perhaps the Minister will be able to tell me whether there is a problem in that regard. If ordinary citizens are to be able to take appropriate action to vindicate their rights as consumers and if they are to avoid the expenses associated with the District Court and the Circuit Court, it is important to increase the number of locations where the Small Claims Court can sit.

I support these amendments. I would like the Small Claims Court, which is valuable because it helps people to get their rights to be promoted because it is not being used enough. If we increase the limit above which people cannot use the court, we will give them an opportunity to resolve consumer problems without getting involved in the huge expense of using some of the other courts.

I discussed this matter at some length with Senator Coghlan in the Seanad. As Deputy Hogan knows, the limit that applies to claims made in the Small Claims Court was raised to from €1,269 to €2,000 under the District Court (Small Claims)(Amendment) Rules 2006, SI 4 of 2006, which came into effect early last year. The increase that I fully endorsed was welcomed by the National Consumer Agency which stated at the time that it would seek a further review of the limit within two years, in line with the recommendation in the consumer strategy group's report that the limit should be reviewed biennially. Responsibility for setting the limit that applies to claims made in the Small Claims Court lies with the Courts Service which, I understand, intends to review the limit on a periodic basis. Earlier this month the report of the legal costs implementation advisory group recommended that the jurisdictional limit of the Small Claims Court be increased from €2,000 to €3,000 and revised every two years thereafter. The advisory group further recommended that the Minister for Justice, Equality and Law Reform should consider expanding the range of cases dealt with under the Small Claims Court procedure. I expect the National Consumer Agency will be included in any consultations by the Courts Service about further reviews of the limit. The agency will act as a forceful advocate on behalf of consumers in that regard. Furthermore, section 8(2) of the Bill provides that it will have discretionary power to make recommendations to the appropriate Minister or the Government about legislative change, the amendment of existing enactments or the creation of new enactments or other policy matters relating to consumer protection and welfare. This would allow the agency not only to be active in respect of reviews initiated by the Courts Service, but also to be proactive in regard to a biennial review of the small claims jurisdiction.

Other forms of redress are available to consumers, chief among which is the use of alternative dispute resolution procedures. Section 8 provides that the agency shall promote the development of dispute resolution procedures as a way of resolving consumer transactional disputes. The advantage of providing such procedures is that if the shop or service provider has a well advertised scheme for dealing with complaints, the consumer suffers less loss because the stress involved is reduced and the likelihood of reaching equitable resolution with low effort and time is high.

In a subsequent amendment, the Deputy provides for raising the maximum value of a small claim to €10,000. This would bring small claims outside the jurisdictional limit of the District Court. I do not believe this is the Deputy's intention as it would defeat the ethos underlying the small claims court and could lead to the involvement of barristers, with all the associated costs of any such development.

Will the Minister review the matter before Report Stage?

The figure of €10,000 is problematic in terms of the jurisdiction of the District Court.

I am open to negotiation.

Any figure above €6,000 is outside the jurisdiction of the District Court.

While I accept that is the case, the reason I want to substantially increase the limit is that the small claims court is a cheaper place to resolve disputes.

I agree, but we cannot do anything in that regard.

Does the Minister have powers to make a change?

No, it is a matter for my colleague, the Minister for Justice, Equality and Law Reform.

That solves the issue.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
Section 8, as amended, agreed to.
Section 9 agreed to.
SECTION 10.

I move amendment No. 12:

In page 17, subsection (1)(b), line 34, after “members” to insert the following:

"at least 3 of whom shall be nominated by any body or bodies that appear to the Minister to be representative of consumers".

As the Bill stands, the Minister has the power to appoint all nominees to the agency. The purpose of the amendment is to provide that the consumer bodies have an option of nominating persons to the agency. The omission of such a provision would allow the Minister to appoint all 12 members. Consumer bodies should have a right to nominate a representative number of persons to the agency. I suggest an appropriate figure would be three.

As the consumer experience is a broad one, I am of the view that the capacity should be available to appoint an ordinary person on the street who is at the coalface of purchasing goods and services. One might also need some communications expertise. The National Consumer Agency will be a broad body. Sometimes organisations are not as representative as one might believe.

The current trend is towards reducing leeway or opportunities for the Executive or Minister of the day. I do not necessarily support this position. In this instance, given the breadth of membership required for the agency in terms of different disciplines and so forth, the Minister of the day should have the function and scope to appoint the board. I accept, however, that there are different ways of approaching this issue. In any walk of life — I do not cast aspersions on any current bodies — individuals may set themselves up as organisations without necessarily representing the broad mass of people. The amendment could potentially give such organisations a greater right than a Minister elected by the people to decide who becomes a member of a board.

My proposal is that the Minister would have a voice in deciding which consumer agencies would be nominated. It does not provide that a person could set himself or herself up as a body and thereby acquire a right to have a nominee on the agency. It would still be in the remit of the Minister to select the consumer agencies and give a voice to those who have established organisations to represent consumers. It does not preclude the Minister in any way. He still has a great deal of power in terms of the appointments.

Dare I say that the Fine Gael Party might think the Young Fine Gael website is something that would constitute a basis for appointment. I do not mean that in any—

A Deputy

That is a matter of opinion.

The Minister mentioned Young Fine Gael but at least they are not personal friends of the Taoiseach of the day—

(Interruptions).

They could be, but Paddy the plasterer has a better chance of being appointed to the board of the National Consumer Agency—

He is a consumer too.

—than someone from the Consumers Association of Ireland. Deputy Upton's point is that the Consumers Association of Ireland — we will call a spade a spade — is not happy about the fact that it is not represented in a statutory way. That association is made up of a group of people who have been voluntarily making a major contribution on consumer issues long before it was fashionable or viewed with the importance it is currently viewed. This is the vehicle by which those people can be enshrined in the legislation because regardless of its merits or demerits, we think of the individuals. That agency should have that opportunity.

I deliberately did not mention any group in my comment, nor was I intending to do so. The effect of the legislation is that even if no such body existed in the future, there would still be an obligation on the Minister to give a formal opinion whether such a body exists. Incidentally, Eddie Hobbs was appointed to the consumer agency and he was a member of the consumer—

He was a member.

He still is a member.

I do not think so.

He was at the time of his appointment.

I do not think he is a member now. There are reasons—

He may say he was appointed in that capacity but he was a member of the consumer association.

The Minister would want to be careful about appointing friends to boards of directors. He must be following the lead of his Taoiseach.

He was not a friend, as such. I know him. We attended the same school but—

That is what I mean.

I support the Minister. It is his prerogative to appoint who he wants to a board for which he is responsible. He has a wide pool of people available to him to consider, as mentioned by a member of the Opposition, and I have no doubt, knowing the Minister in his ministerial capacity, that he will examine the suitability of a number of people in the wider field and select from those.

Are Oireachtas Members exempted from membership of this board? Can a sitting Senator or Deputy be appointed to it? There is a trend, with which I disagree, where Oireachtas Members are becoming members of boards. That is not good enough because a conflict of interest can arise. In the past, all legislation contained a section stating a Member of the Oireachtas could not be a member of a particular board or agency. There has been a slippage in that regard since the Eircom Bill of some years ago when a certain Deputy who had an influence in the trade union movement was appointed. We should get back to basics and ensure those boards are independent of Oireachtas Members of all persuasions.

To confirm that point, Deputies and Senators are excluded from membership of the agency under the Bill. That provision has been in legislation for some time.

I have some sympathy with the Deputy on that matter. When I was a committee member, we were associated with one or two other categories of persons who could not serve on a committee. On the other hand, given the formation of the committee system in the House and that there is oversight of the agency by the committees, there is a clear separation of roles and responsibilities which I understand will be the same in this case. For example, the agency will be accountable to this committee or, I presume, its equivalent in any future Dáil regardless of whether the name is changed. A problem could arise if a member of the committee were a member of the agency and a Member of the Dáil. I could envisage conflicts in that regard. The view is that the lives of TDs have become so demanding, we do not have time to be members of other bodies.

They are all available.

Is the amendment withdrawn?

The key point is the basic one I made at the outset. The Minister said we may have the representative of the man in the street on the board. That is welcome because much of the good consumer information will come from that type of person, but it is important that the established consumer bodies whose members have had an expertise and an involvement in consumer matters for a long time should have a right to be considered for membership by the Minister. A percentage of these — three out of the 12 — should have the statutory right to nominate people. The Minister would still have the choice of which bodies to nominate. It is not as if, as somebody said, a person could set himself or herself up as a consumer protection agency or body and ten minutes later have a right to nominate. It would still be within the remit of the Minister as to which agencies or bodies to nominate.

Is the amendment being pressed?

I am pressing the amendment.

I will examine this matter further for Report Stage. I cannot give a guarantee on it because it covers a broad range. It could include up to ten or 15 bodies. The Deputy is thinking of the obvious one but there is room for—

In light of the Minister's commitment to consider the amendment for Report Stage—

I will withdraw the amendment.

In any sector of the economy, people may put themselves forward as representatives. I have dealt with other legislation where the last thing a Minister can do is appoint a person to a board because many other bodies are doing it. That is the other side of the coin.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 17, lines 35 and 36, to delete subsection (2) and substitute the following:

"(2) The chief executive may attend meetings of the Agency.".

The amendment proposes that the chief executive may attend meetings. This matter has been dealt with.

Is the amendment being withdrawn?

I will withdraw it as it has been already addressed by the Minister.

Amendment, by leave, withdrawn.
Section 10 agreed to.
Sections 11 to 13, inclusive, agreed to.
SECTION 14.

I move amendment No. 14:

In page 21, between lines 41 and 42, to insert the following subsection:

"(9) Notwithstandingsubsection (8), a person who was the chief executive shall

not be precluded from—

(a) holding any office or employment in the Civil Service or any public body,

or

(b) acting as a consultant to the Agency, the Minister or any other Minister of the Government,

during the period referred to in that subsection.".

Section 14(8) provides that a former chief executive of the National Consumer Agency shall not for a period of 12 months following his or her departure from the agency hold any other office, employment or consultancy in which he or she is likely to use or disclose information acquired in his or her capacity as chief executive. The aim of the provision is to prevent possible conflict of interests in which information gained in the course of exercising statutory functions might subsequently be used for inappropriate purposes. I do not believe this consideration applies to posts in the Civil Service, a public body or to a consultancy with the agency or a Government Minister. I see no value in depriving the public service of the possibility of availing of the expertise and experience of a former chief executive of the agency for a period of 12 months where the risk of a conflict of interest is minimal.

In this regard, the amendment accords with precedent provisions in the Railway Safety Act 2005. Basically, the provision in this amendment will allow a person to return to the public service.

Amendment agreed to.
Section 14, as amended, agreed to.
Section 15 agreed to.
SECTION 16.

I move amendment No. 15:

In page 22, lines 45 to 48, to delete subsection (2).

The purpose of this amendment is to prevent the chief executive from being gagged, so to speak, and that he or she would be allowed to express his or her opinion.

This applies specifically to the Committee of Public Accounts and not to any other committee. There is a long-standing precedent for this provision and it does not apply only to this Bill.

The provision in section 16(2), which is similar to that contained in section 38 of the Competition Act 2002, is a standard provision in legislation establishing State agencies. The subsection is intended to prohibit the CEO from expressing an opinion on Government policy or the policy of a Minister of the Government when he or she is acting under subsection (1), that is, when giving evidence before the Committee of Public Accounts. It is important to note that this is the only occasion when restrictions are imposed on the CEO of the agency and it does not apply in the case of other Oireachtas committees. For that reason I am not prepared to accept the amendment.

There is a good cause for the inclusion of this type of provision. There is a clear focus in the Committee of Public Accounts on the spending of money, whether it was spent appropriately and so on. It would dilute significantly the work of that committee or blunt its approach if we were to facilitate people to meander on a range of policy items instead of being held accountable for the core issue of finance.

I will withdraw the amendment.

Does that mean that everything comes through the Secretary General of the Department when he or she appears before the Committee of Public Accounts, namely, that the Secretary General represents all agencies under his or her remit?

The Accounting Officer.

Yes, the Accounting Officer.

No, some agencies have direct accountability to the Committee of Public Accounts, do they not? University presidents have.

The NRA or other such agencies.

The former health boards or the Health Service Executive.

Amendment, by leave, withdrawn.
Section 16 agreed to.
NEW SECTION.

I move amendment No. 16:

In page 23, before section 17, to insert the following new section:

17.—The chief executive shall, whenever required to do so by—

(a) a committee appointed by either House of the Oireachtas, the business of which committee includes examination of policy relating to consumer protection and welfare, or

(b) a committee appointed jointly by both Houses of the Oireachtas, the business of which committee includes examination of such policy,

attend before such committee to discuss the general activities of the Agency.".

Amendment agreed to.
Amendment No. 17 not moved.
Section 17 deleted.
Sections 18 and 19 agreed to.
Amendment No. 18 not moved.
Section 20 agreed to.
SECTION 21.

I move amendment No. 19:

In page 26, subsection (3)(b), line 2, to delete “and”.

Amendment agreed to.

I move amendment No. 20:

In page 26, subsection (3)(c), to delete line 9, and substitute the following:

"category specified in the co-operation agreement, and

(d) ensuring that no person is the subject of—

(i) proceedings (whether civil or criminal) under this Act or any other enactment, or

(ii) the exercise of any power undersection 71 or 73,

in respect of an alleged contravention of a provision of this Act or any other enactment, by more than one of the parties.".

Amendment agreed to.

I move amendment No. 21:

In page 26, subsection (6), line 22, to delete "notice of its making," and substitute "notice of its making".

This is a minor technical amendment which removes an inappropriate and misplaced comma from the text.

Amendment agreed to.

I move amendment No. 22:

In page 26, to delete lines 45 and 46 and substitute the following:

"(11) (a) In this section “prescribed body” means each of the following:

(i) the Irish Financial Services Regulatory Authority;

(ii) a body prescribed by the Minister.".

Amendment agreed to.

I move amendment No. 23:

In page 27, between lines 7 and 8, to insert the following subsection:

"(13) It shall be a condition of each co-operation agreement between the Agency and the prescribed bodies that their primary objective in each fulfilling their statutory duties shall be the advancement of consumer protection and welfare in an effective, proportionate and efficient manner.".

This relates to our earlier discussion about how to resolve problems that might arise between the Financial Services Regulatory Authority and the National Consumer Agency. It would provide that notwithstanding the co-operation agreements that might be reached between the agency and a prescribed body, the statutory duty of any of the bodies should be the welfare of the consumer. It should be paramount in their dealings. Perhaps we should discuss this further on Report Stage.

It would be improper to seek to prescribe in this legislation the primary objectives of other statutory bodies whose functions and objectives are set out in the statutes under which they were established. I am satisfied that the co-operation provisions in section 21 already oblige parties to such agreements to consult each other in circumstances where the respective exercise by each party involves the determination of issues of consumer protection and welfare. The amendment, as phrased, could unwittingly or inadvertently interfere with other statutory bodies under different Acts. I do not have such jurisdiction.

Will the issue be discussed further on Report Stage?

We can reflect on it before Report Stage.

Amendment, by leave, withdrawn.
Section 21, as amended, agreed to.
SECTION 22.

I move amendment No. 24:

In page 27, between lines 25 and 26, to insert the following subsection:

"(5) The Agency shall be entitled, at any stage, to bring concerns to the attention of a relevant Oireachtas Committee about any inadequacy in its funding or other resource requirements, matters concerning its relationship with the Minister or his Department or prescribed bodies or the Agency's powers, work programme or related matters, where the Agency believes that such concerns need to be addressed if it is to fulfil its statutory mandate effectively.".

We have a precedent from the Office of the Director of Corporate Enforcement. He is not entirely satisfied that the resources or the staff he has to do his job are sufficient. In the amendment we are asking the Minister to examine how we can ensure adequate funding and staff resources will be available for the agency to do its job.

When I read this amendment, I thought the Deputy must have no ambition to be in Government. We must be careful. This would give a charter to any agency to state every year that it was short of staff and needed more. It would encourage bad behaviour. It is a bad governance principle. That is why I had to form the view that the Deputy had no ambition to be in government.

There is a balance to be struck. Governments are very good at establishing agencies and this Government has established more than any other. However, we must ensure that if we give an agency certain powers to do a job, it is given the resources and staff to do it.

However, the other balance is the Department of Finance.

I am aware that that Department must approve it.

It has a point, at times.

At times, yes.

The easiest thing in the world is to keep looking and say "I can't do A, B, C or D if I don't get X, Y and Z". When one gets X, Y and Z, however, one then says one cannot do any other functions.

This amendment is only seeking to bring it to the attention of the Oireachtas committee. I am not asking the Minister to do a whole lot.

The Deputy is sparing the FOI form of mechanism. They can do it anyway, by the way.

They do not normally feel compelled to bring these matters to the attention of the committee. They bring it to the permanent government staff in the Minister's Department.

The Deputy has his ways and means.

We never hear about them.

Is the amendment being withdrawn?

Nothing is preventing the agency from raising any of those matters before the committee.

Amendment, by leave, withdrawn.
Section 22 agreed to.
Sections 23 and 24 agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill".

What disclosure of interests does the Bill require? Does it concern the disclosure of interests such as previous employment or current board positions? What type of information is the Minister looking for in this regard and is it from board members, chief executives or chairmen?

The section provides that where a chief executive, or member of the agency or of a committee, a member of the staff of the agency, an authorised officer, consultant, adviser or other persons engaged by the agency has a pecuniary interest or other beneficial interest in or material to any matter which is to be considered by the agency, he or she shall disclose to the agency the nature of the interest in advance of any consideration of the matter, shall neither influence nor seek to influence a decision relating to the matter, shall take no part in any consideration of the matter, and if he or she is the chief executive or a member of the agency, etc., shall withdraw from the meeting for so long as the matter is being discussed or considered, and shall neither vote nor otherwise act as such chief executive or member in relation to the matter.

Is the Minister satisfied that the current chief executive has no vested interests, given that she worked for the association of investment managers in the past?

The Minister has no problem with that.

It is transparent and public knowledge.

Question put and agreed to.
SECTION 26.

I move amendment No. 25:

In page 29, between lines 40 and 41, to insert the following subsection:

"(2) Any consultant or advisor proposed to be retained by the Agency (and on an annual basis thereafter if subsequently retained) shall lodge with the Agency a full list of its clients and client matters before the engagement commences and shall identify (to the satisfaction of the Agency) measures necessary to ensure that no conflict of interest arises in relation to the consultant's or advisor's work for the Agency.".

This amendment seeks to ensure that there is no conflict of interest. It is a follow up to what I said earlier. I am seeking a list that would bring to the attention of the agency any material interests that would affect work that might be done for the agency through a conflict of interest. If one is taking on a consultant in a private capacity — not in an open or transparent way — to deal with data that would be commercially sensitive, that information should be brought to the attention of the chief executive or chairman of the agency to ensure that there is no conflict of interest.

The amendment states that "any consultant or advisor proposed to be retained by the agency ... shall lodge with the agency a full list of its clients and client matters before the engagement commences...".

Not necessarily.

That is what the amendment says.

I know, but maybe I could clarify the position. I want some way in which they will be brought to the attention of the chairman and chief executive of the national consumer agency. The agency covers such a broad area that one could have great difficulty in finding suitable people to do consultancy work who have no conflict of interest.

The Deputy's amendment is too difficult to enforce. One would have people listed who may not want to be listed at all. If I hire a consultant any individual will do, but the Deputy's list is an exhaustive one. Anybody they ever did business for would have to be listed for the agency. Section 25 might meet the Deputy's objective because it includes a consultant.

Does it?

It does, yes. It is on page 28. That probably captures what the Deputy wants. In other words, if one is hiring someone who has an interest in this, it should be declared.

It refers to "an authorised officer or consultant", which is fair enough.

The Deputy's amendment is not seeking a list of 150 people to be written out.

Amendment, by leave, withdrawn.
Section 26 agreed to.
Sections 27 to 29, inclusive, agreed to.
SECTION 30.

I move amendment No. 26:

In page 30, subsection (2), line 28, to delete "authorised" and substitute "appointed".

This is a technical amendment to replace the word "authorised" in this section with the word "appointed" to reflect the fact an officer must be appointed as an authorised officer by the agency.

Amendment agreed to.

Amendments Nos. 27 to 33, inclusive, and Nos. 36 and 37 are cognate and related and may be discussed together by agreement.

I move amendment No. 27:

In page 30, subsection (5)(a), lines 45 and 46, to delete “, place or vehicle,”.

These are technical amendments which involve three related changes — first, simplifying the definition of "premises" at subsection (17) to provide that it means any "place or vehicle"; second, removing the redundant references to "place or vehicle" in the specified paragraphs of subsection (5) as these words are encompassed by the definition of "premises"; and, third, inserting a new and comprehensive definition of "vehicle" in subsection (17) in order to ensure all types of vehicle come within its scope.

These are essentially technical changes designed to eliminate definitional duplication and to ensure authorised officers are not prevented from pursuing investigations because of gaps in the definition of "vehicle".

Amendment agreed to.

I move amendment No. 28:

In page 31, subsection (5)(a), line 3, to delete “, place or vehicle”.

Amendment agreed to.

I move amendment No. 29:

In page 31, subsection (5)(a), line 4, to delete “place or vehicle,”.

Amendment agreed to.

I move amendment No. 30:

In page 31, subsection (5)(b), line 6, to delete “or place or vehicle”.

Amendment agreed to.

I move amendment No. 31:

In page 31, subsection (5)(d), line 18, to delete “place or vehicle,”.

Amendment agreed to.

I move amendment No. 32:

In page 32, subsection (10), line 26, to delete "or place or in any vehicle".

Amendment agreed to.

I move amendment No. 33:

In page 32, subsection (10), line 32, to delete "place or vehicle,".

Amendment agreed to.

Amendments Nos. 34 and 35 are related and both may be discussed together by agreement.

I move amendment No. 34:

In page 32, lines 49 and 50 and in page 33, lines 1 to 4, to delete subsection (13).

Subsection (13) provides that books, documents or other records obtained by an authorised officer of the National Consumer Agency on foot of a court warrant may be retained for a period of six months or such longer period as may be permitted by a District Court judge or until the conclusion of court proceedings commenced within either of these periods and to which the books, documents or records are relevant.

A similar provision was included in the Companies Act 1990 by virtue of an amendment made by the Company Law Enforcement Act 2001 and also the Competition Act 2002. I am advised that the six-month restriction gave rise to considerable difficulties for both the Office of the Director of Corporate Enforcement and the Competition Authority. As a result of these difficulties, both provisions were repealed by the Investment Funds, Companies and Miscellaneous Provisions Act 2006.

To ensure the National Consumer Agency does not encounter similar difficulties, I propose to remove the subsection from the Bill. The repeal of subsection (13) requires a consequential technical amendment to subsection (14) involving the substitution of the words "this section" for the words "subsection (13)". This should not have been included in the first place. We spotted it and are removing it.

If documentation is received by the National Consumer Agency arising from a raid on a premises, must it be given back within a certain period of time or not at all?

It must give copies back but it can hold on to the documents.

Is that within a certain period of time or immediately?

Subsection (14) now applies.

It has 14 days.

Subsection (14) states:

Where the Agency or an authorised officer proposes to retain, pursuant tosubsection (13), books, documents or records for a period longer than 14 days after the date on which they were seized or obtained by the authorised officer, the Agency or that officer shall, before the expiry of that period of 14 days, or such longer period with the consent of the person hereafter mentioned, furnish, on request, a copy of the books, documents or records to the person who it appears to the Agency or officer is, but for the exercise of the powers under this section, entitled to possession of them.

Amendment agreed to.

I move amendment No. 35:

In page 33, subsection (14), line 6, to delete "subsection (13)” and substitute “this section”.

Amendment agreed to.

I move amendment No. 36:

In page 33, subsection (17), to delete lines 27 and 28 and substitute the following:

" "premises" means any place or vehicle;".

Amendment agreed to.

I move amendment No. 37:

In page 33, subsection 17(iii), lines 46 and 47, to delete "reproductions." and substitute the following:

"reproductions;

"vehicle" means any conveyance in or by which any person or thing, or both, is transported which is designed for use on land, or in water or in the air, or in more than one of those ways, and includes—

(a) part of a vehicle,

(b) an article designed as a vehicle but not capable of functioning as a vehicle,

(c) a skip or other container designed for use or used for carriage on a vehicle,

(d) a trailer designed for use or used with a vehicle.”.

Amendment agreed to.
Question proposed: "That section 30, as amended, stand part of the Bill."

On what basis will the National Consumer Agency be empowered to enter premises and search for records? Will warrants be necessary? Will the position be the same as that which obtains in respect of the Competition Authority?

Yes. Authorised officers will be obliged to obtain warrants of appointment, etc.

Question put and agreed to.
SECTION 31.

I move amendment No. 38:

In page 34, subsection (1), line 6, to delete paragraph (d) and substitute the following:

"(d) an officer of the Revenue Commissioners,

(e) the Central Bank and Financial Services Authority of Ireland, or”.

Amendment agreed to.

I move amendment No. 39:

In page 34, subsection (2), line 22, to delete paragraph (d) and substitute the following:

"(d) an officer of the Revenue Commissioners,

(e) the Central Bank and Financial Services Authority of Ireland, or”.

Amendment agreed to.
Section 31, as amended, agreed to.
Sections 32 to 40, inclusive, agreed to.
SECTION 41.

I move amendment No. 40:

In page 40, between lines 10 and 11, to insert the following subsection:

"(2) Commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group. This is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally.".

The purpose of this amendment is to protect vulnerable consumers. There is nothing specific in the Bill in this regard. We took our lead from the EU directive because we believe it is important that it should be spelt out that vulnerable consumers should, for whatever reason, be specifically named and protected

I have similar views to those expressed by the Deputy. I must point out that the substances and, in large part, wording of Article 5.3 of the directive are already included in the Bill in section 2(2) which states:

(b) if the commercial practice or the product is a practice or product that would be likely to materially distort the economic behaviour only of a clearly identifiable group of consumers whom the trader could reasonably be expected to foresee as being particularly vulnerable because of their mental or physical infirmity, age or credulity, the expression shall be read as “the average member of that vulnerable group”.

In my opinion, that covers what the Deputy is attempting to achieve.

Amendment, by leave, withdrawn.
Section 41 agreed to.
Sections 42 to 47, inclusive, agreed to.
NEW SECTION.

Amendments Nos. 41, 50 and 61 are related and may be discussed together.

I move amendment No. 41:

In page 45, before section 48, to insert the following new section:

48.—(1) In this section—

"cash" means cash that is legal tender;

"relevant method", in relation to payment, means each of the following methods of payment"

(a) cash,

(b) credit card,

(c) direct debit,

(d) any other method or methods of payment prescribed by the Minister.

(2) In this section a reference to a representation includes a reference to a representation made at any stage up to the time the trader accepts payment in respect of the product concerned.

(3) Where—

(a) a trader makes a representation that the trader will accept payment in respect of a product by any one of 2 or more different relevant methods, or

(b) it is the practice of a trader to accept payment in respect of a product by different relevant methods,

the trader shall not impose an additional charge on any person by reason of the person's making payment in respect of the product by one of the relevant methods (to which the foregoing representation relates or as regards which the foregoing practice exists) as distinct from another of them.

(4) For the purposes ofsubsection (3)---

(a) without limiting any of the other means by which that subsection may be contravened, a trader shall be deemed to impose an additional charge, by reason of the person concerned making payment as mentioned in that subsection, if the price charged by the trader in respect of the product concerned is, where one of the relevant methods of payment is used by that person, greater than the price that would be so charged were that person to use another of them,

(b) if the representation or practice referred to in that subsection relates not only to relevant methods of payment but to one or more other methods of payment as well, that fact is immaterial, and

(c) it is immaterial that the trader can show that any expenses incurred by the trader in accepting payment by one of the relevant methods are greater than those incurred by the trader in accepting payment by another of them.

(5) A trader who contravenes subsection (3) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.

(6) In proceedings for an offence under this section, where evidence is given that on a particular occasion the defendant accepted payment in respect of the product concerned by a relevant method which was different from that which the defendant accepted in respect of the product on another occasion in the period of 12 months preceding the first-mentioned occasion (and that previous method is also a relevant method), then it shall be presumed, until the contrary is proved, that a practice existed on the part of the defendant to accept payment in respect of the product by those foregoing methods.".

Amendment No. 41 is important. On Second Stage I advised of my intention to introduce provisions to prohibit discrimination against consumers on grounds of the method of payment used to pay for goods and services. The issue was raised in the Seanad by Senator Cox and supported by Senator Coghlan and there was unanimous agreement among those present that we should make such provision and bring it to the Dáil and this Committee. The provision will ensure there will not be discrimination against consumers on the grounds of the method of payment used to pay for goods and services. I am persuaded by the argument put forward in the Seanad and other quarters that consumers should not be discriminated against solely on the basis of the method of payment by which they choose to pay for goods or services.

Given that the discrimination complained of in most instances relates to traders imposing surcharges for accepting payment by means other than cash, I am concerned that widespread adoption of this practice could severely impact on the use of alternative methods to cash as acceptable means of payment. This would be a retrograde step and would mean that as a society we would remain wedded to cash and cheques, which are among the most expensive methods of payment. Nevertheless, having considered the nature of any provision that could be introduced in the area, I wish to point out that framing such a provision is not without its difficulties, in particular when possibly unintended consequences could arise.

We need to be careful that in outlawing the imposition of charges for accepting payment in one form over another, that such charges do not then become hidden. For example, if a trader, as a consequence of the provision, built a charge into a higher price for everybody, no consumer interest would have been served. The corollary of a surcharge is that some traders might like to characterise a practice as one of providing a discount for a particular payment method. One trader might display a charge of €50 for a product, but stipulate that it would be available at a discount price of €47.50 if the consumer paid cash. That is no different from a trader saying the price is €47.50 but there will be a surcharge of €2.50 for paying by credit card. Therefore, it could be argued that the proposed amendment may have an effect of prohibiting discounts and that may not be in the best interest of consumers.

There have also been issues with regard to a discount for paying by direct debit and, recently, with regard to paying through the post office where people felt discriminated against. Many elderly and less well-off people may opt to pay on a weekly basis at the post office rather than wait for a two-monthly Bill to arrive. Why should they pay more than those who chose to pay by direct debit? These are the types of issue we must consider in this context. I know of consumers who refuse to pay by direct debit because of inefficient traders whose billing systems are unsatisfactory. These consumers do not want money coming out of their accounts until they know for what they are paying. Why should such consumers be penalised on account of what they see as inefficiency on the part of businesses?

I am aware that some traders consider that the imposition of surcharges in respect of certain methods of payment is justified on the basis that the trader is merely seeking to recoup the cost imposed on them for accepting payments by these methods. However, most forms of payment involve incurring some element of cost. For example, accepting payment by cash may involve not only additional bank charges for lodging cash and coin, but other costs such as for additional security. The recoupment of costs cannot therefore be said to be unique to accepting payment by means other than cash. It is not clear therefore why some traders choose to impose surcharges in some instances.

Notwithstanding the difficulties I have outlined, I am satisfied there is no sound reason as to why consumers should be discriminated against because they choose to use one method of payment as distinct from another. Thus, the proposed amendment prohibits traders from imposing an additional charge by reason of a person paying for goods or services by means of any of the relevant methods described in subsection (1), that is by cash, credit card or direct debit as distinct from any other form of the relevant methods.

The amendment also provides that an additional charge is deemed to have been imposed if the price charged by a trader for a product where a customer uses one of the methods of payment prescribed in subsection (1) is greater than the price charged for the product where one of the other methods of payment prescribed in subsection (1) is used. It also empowers the Minister to prescribe additional methods of payment for the purposes of this provision.

The amendments also provide for offence provisions with regard to those who would impose additional charges in contravention of the proposed provisions of the Bill. They further provide that contravention of the additional charges provisions are also prohibited acts within the meaning of Part 5 of the Bill, thereby extending the civil and criminal remedies of Part 5 to these provisions.

I wish to advise the committee that it is my intention to review a number of the existing advertising orders made under the Consumer Information Act 1978. I am particularly concerned that the Consumer Information (Advertisements for Concert or Theatre Performances) Order, SI 103 of 1997 and the Consumer Information (Advertisements for Airfares) Order, SI 468 of 2000, have not resulted in transparency in pricing in those areas. I am advised by the Office of the Director of Consumer Affairs that it continues to receive a considerable volume of complaints to the effect that owing to the multiplicity of additional charges imposed when purchasing concert or airline tickets, consumers find the final price they must pay differs significantly from the price advertised to the extent that the advertised price is often meaningless. Consequently, it is my intention to review these orders to ensure all advertisements for concert, theatre or airline tickets must include a statement of the full price the consumer is obliged to pay. While the problems being experienced by consumers relate in the main to concert and theatre tickets as well as airline fares, should similar difficulties arise in respect of products or services in other areas, section 48 empowers the Minister to make regulations prescribing particular information to be included in the advertisement of such products.

I am satisfied the proposed amendments will help to ensure consumers will not continue to suffer discrimination regarding the methods of payments they use when paying for goods and services, especially when they choose to use more efficient methods other than cash. The amendments will also help to eliminate some of the barriers to the continual roll-out of such methods and I commend the amendments to the select committee.

I welcome the amendments tabled by the Minister. The issues he has raised are very important for consumers in respect of both the primary legislation and the statutory instruments mentioned by him. I refer to regulation of sub-prime mortgages, which allow for people to pay a 2% surcharge or more on base rates. This is unacceptable and effectively constitutes a surcharge on people with low incomes who are restricted in the manner in which they can make payments for certain goods and services. For example, in respect of housing, those who pay above the base rate to this extent could be the first to get themselves into financial difficulties and to face repossession. This move on the Minister's part is important and has the wholehearted support of Opposition members.

As for the advertising order, the Minister mentioned the administrative charges that can creep into these matters. Those who intend to recoup some of their costs by levying administrative charges should be forced to advertise that fact. Perhaps the Minister will take this into account when considering the making of advertising orders.

I also support these amendments. The Minister mentioned the angst that has been created by the additional cost incurred by those who are obliged to pay by direct debit. This has created huge problems for those who have been least able to pay such costs. I welcome the thrust and tone of the amendment.

Amendment agreed to.
Sections 48 to 54, inclusive, agreed to.
SECTION 55.
Question proposed: "That section 55 stand part of the Bill."

This section pertains to price display regulations. How will the players who will come under the scope of this section be notified? Will it be achieved through advertising in the national press? What mechanism will be used to bring the new regulations and attendant obligations to the attention of the retailers?

The Minister has the power to do so. The Minister "may make regulations requiring traders who supply a product, or a class or type of product, to display the price or charge to consumers of or for those products in any manner or form specified in the regulations". Obviously this will be done by publication.

Will there be a series of advertisements in the national press?

Yes, my Department will publish the regulations and there is a variety of means by which it can so do.

It might not be a good day for news and the Minister may be obliged to take out an advertisement.

That is really an operational matter.

I want to know how the Minister will ensure the people affected will be aware of their new obligations and that when they are in breach of their obligations—

This can be done in a number of ways. It can be done by public announcement or by significant advertising. It can be done through the National Consumer Agency in terms of building up compliance. Obviously, the normal way to bring in new regulations is through the preparatory work needed prior to publication. Essentially, the authorised officers work with traders and companies on the ground to highlight the regulations to them and indicate what is required to build up compliance with them. If necessary, one can do direct mailshots. Given the present circumstances on the electoral and political front, the Deputy is aware of how to communicate directly with as many people as possible. I saw some of his people on YouTube last night.

Very good. I am glad the Minister is taking note. In the context of what the Minister has just announced about the review of the advertising orders and what he said earlier about the previous section and the number of amendments he brought forward, will he make it absolutely certain that people know exactly what they are doing?

That is fair enough. The agency will help in that regard. Obviously, any and every method to make people aware will be undertaken at the time.

Question put and agreed to.
Section 56 agreed to.
SECTION 57.

Amendment No. 1 to amendment No. 42 will be discussed with amendment No. 42.

I move amendment No. 42:

In page 52, subsection (2), lines 19 to 21, to delete paragraph (b) and substitute the following:

"(b) allow any person purchasing or about to purchase, such food to weigh it or observe its weighing on the weighing scale or weighing machine in a manner that allows that person to calculate the cost of the food prior to purchase.”.

I move this amendment because I have come to understand recently that many supermarkets are no longer allowing customers to put their own tags on their fruit and vegetables after weighing them. It does not inspire confidence in respect of consumers being absolutely satisfied that they received what they thought they were getting after weighing the produce. I note the Minister's amendment, which aims to address this matter. The information on the tag one gets after weighing food or vegetables should include the weight, unit price and total price so that people know they have received what they ordered and that there is no dispute about it. What is put on the tag is equally as important as ensuring that one receives what one weighed. We would certainly support looking at this on Report Stage if this is necessary to strengthen it. The Minister's amendment addresses this issue.

I agree with Deputy Hogan. It is important to have transparency and to ensure that the consumer knows exactly what he or she is getting. It might raise the issue of consumer information and education in terms of working out unit prices per hundred grams or per unit size. There is considerable confusion around this area in terms of what the consumer actually thinks he or she is getting much of the time.

I move amendment No. 1 to amendment No. 42:

In paragraph (b), lines 3 and 4, to delete all words from and including “that”, where it firstly occurs in line 3, down to and including “purchase.” in line 4 and substitute the following:

"that allows the person to see the reading of the weight provided by the scale or machine and to be informed of the resultant price before payment.".

I say "Amen" to that. I agree with what the Deputies have said and with amendment No. 42. We are putting forward an amendment that captures the import of Deputy Hogan's amendment, namely, that consumers buying food by weight are in a position to determine this weight in advance of purchasing the food. Our amendment would delete all words from and including "that", where it firstly occurs in line 3, down to and including "purchase." in line 4 of paragraph (b) and substitute “that allows the person to see the reading of the weight provided by the scale or machine and to be informed of the resultant price before payment.”. We can look at it again on Report Stage but this wording captures it. If there are any other inadequacies, we can deal with them by way of regulation as well.

Will the Minister look at the information that goes on the tag on Report Stage? This is information that states exactly what the weight, unit price and total price are. There cannot be any problem in respect of this. This might be done by way of regulation.

This would be appropriate to regulation in respect of section 48. I think we have covered that.

Amendment to amendment agreed to.
Amendment No. 42, as amended, agreed to.
Section 57, as amended, agreed to.
Section 58 agreed to.
SECTION 59.

Amendments Nos. 44 to 48, inclusive, are cognate. Amendments Nos. 43 to 48, inclusive, will be discussed together.

I move amendment No. 43:

In page 52, subsection (1), line 35, to delete "If the Government is" and substitute "If the Government are".

This amendment and related amendments to other subsections of this section and section 60 are technical amendments. They involve the substitution of the plural for the singular form of verbs in clauses in which the subject known is the Government. Under the Constitution, "Government" is a plural noun.

Amendment agreed to.

I move amendment No. 44:

In page 52, subsection (2), line 41, to delete "the Government thinks" and substitute "the Government think".

Amendment agreed to.

I move amendment No. 45:

In page 53, subsection (3)(a), lines 4 and 5, to delete “the Government thinks proper and specifies” and substitute “the Government think proper and specify”.

Amendment agreed to.

I move amendment No. 46:

In page 53, subsection (4), line 8, to delete "the Government is" and substitute "the Government are".

Amendment agreed to.

I move amendment No. 47:

In page 53, subsection (5), lines 15 and 16, to delete "the Government is" and substitute "the Government are".

Amendment agreed to.
Section 59, as amended, agreed to.
SECTION 60.

I move amendment No. 48:

In page 53, subsection (2)(e), line 41, to delete “the Government considers” and substitute “the Government consider”.

Amendment agreed to.
Section 60, as amended, agreed to.
Section 61 agreed to.
NEW SECTION.

I move amendment No. 49:

In page 54, before section 62, but in Part 3, to insert the following new chapter:

"CHAPTER 5

Price Surveys

61.—The Central Bank and Financial Services Authority of Ireland Act 2003 is amended in Article 3 of Part 21 of Schedule 1 by the insertion of the following after section 7:

7A.—(1) The Director may, in the interests of better informing consumers, conduct price surveys in order to—

(a) make consumers aware of price discrepancies,

(b) assess competitiveness or other practices under sections 4 and 5 of the Competition Act 2002, or

(c) for such other reason as the Director may, from time to time, deem necessary.

(2) The Director shall not be limited by national or currency boundaries in carrying out a price survey referred to in subsection (1).

(3) The Director shall be empowered to—

(a) (i) publish or part-publish all or any part of information,

(ii) create an electronic database containing data, gathered by him or her under this section,

and

(b) make any electronic database created under paragraph (a)(ii) publicly available on-line.

7B.—The Director may compile and publish codes of conduct for service providers and retailers on such issues as he or she may, from time to time, deem appropriate, including the passing on of costs such as exchange rate movements.

7C.—(1) The Director may establish the ‘Good Practice Provider Quality Mark'.

(2) The Good Practice Provider Quality Mark shall be awarded to suppliers of goods and services who agree to be bound by a code of practice compiled and published under section 7B.".".

This amendment would ensure that price surveys on the products bought by consumers frequently are carried out on a regular basis. It amends the Central Bank and Financial Services Authority of Ireland Act 2003 to ensure an empowerment to publish or part publish all information or as much information as possible to help consumers reach a realisation of what is good value.

The amendment relates to our discussion on codes of conduct and good quality marks, in respect of which the Minister indicated he has no difficulty. Does he have a better suggestion on how to achieve the same objective? The thrust of the amendment is to give the director the power to conduct and publish price surveys.

The agency has that power. The amendment originated in the Seanad, but it is not clear which director the Deputy refers to in the first part of the amendment, which seeks to amend the Central Bank and Financial Services Authority of Ireland Act 2003. The effect of the amendment would appear to empower the Director of Consumer Affairs to conduct price surveys for the various reasons stated in the amendment, but that office will seek to exist once the national consumer agency comes into being. Therefore, the question of assigning power to the office does not arise.

If it is the intention that the power as proposed in the amendment should be assigned to the consumer director of the Financial Regulator, I advise that the Financial Regulator has powers under the 2003 Act to conduct consumer information and awareness campaigns in respect of financial services. The Deputy will be aware of the Financial Regulator's activities in that area, particularly in terms of regular price surveys of different financial services. The 2003 Act also empowers the consumer director to issue statutory codes in respect of regulated entities providing financial services.

Section 8 of the Bill sets out the functions of the new national consumer agency and includes specific provisions allowing the agency to conduct and commission research studies and analyses regarding its functions and to publish the findings of such research as it considers appropriate. Section 8 also empowers the agency to promote public awareness and conduct public information campaigns for the purpose of educating and advising consumers. Therefore, the Bill contains sufficient provision to ensure the agency can carry out the pricing surveys proposed in the Deputy's amendment.

The inclusion of a power to compile and publish codes of conduct for service providers seems to mirror what is included in section 88 of the Bill, which gives the agency power to prepare, issue and publish guidelines for traders on any matter relating to consumer protection and welfare. Traders who agree to be bound by such guidelines will be free to advertise that fact.

We discussed an amendment on quality assurance schemes. We are sympathetic to the aims of this part of the amendment, which seeks to address quality mark schemes in a different way. We tabled an amendment that was accepted. The Deputy's amendment proposes that the consumer director of the Financial Regulator and-or the national consumer agency would provide a good practice provider quality mark award, but our reservations about the NCA establishing and operating arrangements of this kind are shared by the agency. It is better that the agency would encourage and promote schemes among traders rather than running such schemes because it could give rise to a direct conflict of interest.

I tabled this amendment because we were unsure about where the parallel powers would end up, that is, with the Financial Regulator or the national consumer agency. Arising from earlier amendments on section 8, we have a better idea of the story in that regard.

The key point is that we are in agreement that pricing surveys should be carried out periodically and published and the Bill provides for this position. We are examining the encouragement and promotion of quality mark schemes.

Amendment, by leave, withdrawn.
Sections 62 to 64, inclusive, agreed to.
SECTION 65.

I move amendment No. 50:

In page 55, between lines 38 and 39, to insert the following:

"(b) any contravention of section 48(3);”.

Amendment agreed to.
Section 65, as amended, agreed to.
SECTION 66.

I move amendment No. 51:

In page 56, line 5, after "representation" to insert ", or on whose behalf the representation was made,".

A number of persons and bodies, many of whom are traders, are commonly involved in making commercial representations and advertisements. These include advertising agencies, television and radio stations, newspapers and magazines. The aim of this amendment is to forestall the possibility that a trader who commissions an advertisement might be able to evade the requirements of the section by claiming he or she did not make the representation in question but merely provided content to the advertising agency, newspaper or radio or television station to enable them to make it. A trader who commissions an advertisement and supplies the content on which it is based should be under the obligation to establish the truth or otherwise of claims in that advertisement, which is what this amendment seeks to do.

Amendment agreed to.
Section 66, as amended, agreed to.
SECTION 67.

I move amendment No 52:

In page 56, subsection (1)(b), between lines 15 and 16, to insert the following:

"or

(iii) relates to or includes any practice or representation that otherwise contravenes this Act.".

I am concerned the definition of prohibited advertising is narrow and might exclude the advertising of pyramid schemes which have created many problems for many people. The amendment relates to what is included in the definition and whether it is wide enough to include the advertising of pyramid schemes.

The Bill outlaws pyramid schemes. Therefore, anybody involved in their promotion in any shape or form will be guilty of a criminal offence and it will be illegal under the Act to advertise them and to promote, encourage or participate in such an act. People must know what offence they commit and that they are committing an offence. Pyramid schemes are illegal so we cannot countenance advertisements for them.

Amendment, by leave, withdrawn.
Section 67 agreed to.
SECTION 68.

Amendments Nos. 53 and 59 are related and may be discussed together.

I move amendment No. 53:

In page 56, subsection (2), line 38, to delete "set out" and substitute "provided".

This and the related amendment to section 73 are technical amendments. They involve the substitution of "provided" for "set out" with regard to fines and penalties applying under Chapter 4 of Part 5 of the Bill.

Amendment agreed to.
Section 68, as amended, agreed to.
Section 69 agreed to.
SECTION 70.

Amendments Nos. 54 and 55 are related and may be discussed together.

I move amendment No. 54:

In page 58, line 44, to delete "or" and substitute "of".

This amendment and the one grouped with it are minor amendments to correct typographical errors in the text of section 70(6)(b).

Amendment agreed to.

I move amendment No. 55:

In page 58, line 45, to delete "of" and substitute "or".

Amendment agreed to.
Section 70, as amended, agreed to.
Section 71 agreed to.
SECTION 72.

I move amendment No. 56:

In page 60, lines 15 to 20, to delete subsection (1).

This section does not include misleading commercial practice or contravention of section 63(1) with regard to pyramid promotional schemes. Why are these excluded from the right of action for damages?

Does the Deputy propose to delete section 72(1)?

I propose to delete the subsection because it excludes, for example, the right to bring action for damages. Specific reference is made in the subsection to pyramid promotional schemes.

That was done because no one can participate in a pyramid scheme, by definition. It is unlawful.

It is the same reason as was given previously.

A person cannot be compensated for performing an illegal act.

Amendment, by leave, withdrawn.
Section 72 agreed to.
SECTION 73.
Amendment No. 57 not moved.

I move amendment No. 58:

In page 61, lines 3 to 5, to delete subsection (1).

This amendment refers to the same issue as my previous amendment, so I withdraw it.

Amendment, by leave, withdrawn.

I move amendment No. 59:

In page 62, subsection (11), line 31, to delete "set out" and substitute "provided".

Amendment agreed to.
Section 73, as amended, agreed to.
Section 74 agreed to.
SECTION 75.

I move amendment No. 60:

In page 63, between lines 42 and 43, to insert the following subsections:

"(8) Where a person is subject to prosecution for an offence under this act, which may also give rise to prosecution for an offence under any other legislation by a prescribed body, or by the DPP following a complaint by a prescribed body, the prosecution by the Agency shall take precedence and no other prosecution shall be initiated in relation to the facts giving rise to the offence alleged to have been committed under this Act (or any other Act which the Agency has responsibility for enforcing) until after the Agency has confirmed to the prescribed body or the DPP as appropriate, that no prosecution will proceed, that a conviction has been secured or that an acquittal of the person has arisen.

(9) Where the Agency has secured a conviction against a person in relation to an offence under legislation which it is responsible for enforcing, a Court may take such a conviction into account as a mitigating factor in any subsequent proceedings taken by a prescribed body in relation to facts giving rise to the offence, but where a seperate criminal liability arises under a different Act or regulation.".

The purpose of this amendment is to give clarification to the fact that one cannot be prosecuted twice. The law of equity, or double jeopardy, eliminates a double whammy in the event of a prosecution.

The amendment comprises a number of elements. It seeks to give the agency precedence over any bodies prescribed under the Bill in respect of taking prosecutions under legislation to prevent further prosecution by any prescribed body until confirmation is received by the agency that it does not intend to prosecute or a conviction or acquittal has occurred. I do not consider it appropriate to seek to prescribe in legislation the order of precedence in which prosecutions should be taken. I am of the view that such matters are best left to the bodies concerned to be agreed in the context of any co-operation agreement made under section 21 of the Bill, as we previously discussed.

I agree with the Deputy, however, that there should be no question of double prosecution of a person by the agency or a prescribed body in respect of a contravention of this or any other legislation. To that end, amendment No. 20, which I have proposed, includes a specific provision to ensure that no person may be the subject of enforcement proceedings under this Bill or any other enactment by more than one of the parties to a co-operation agreement made in accordance with section 21. Accordingly, I am of the view that the essence of the Deputy's amendment was included in my amendment No. 20, and I hope he accepts that.

I have offered the Minister a way out in terms of ensuring the National Consumer Agency is the primary body on any issues arising in respect of disputes and prosecutions. My amendment provides for a basis on which the agency can be even stronger.

That is not really the case. It would be wrong in primary legislation to attempt to anticipate every circumstance that may arise in terms of bringing prosecutions. The Deputy is delving into operational issues which are best left until an agreement is concluded between the agency and other bodies.

I am heading off a turf war. In the event of a dispute, the National Consumer Agency will be enshrined in the Bill as the primary body.

The Deputy cannot do that.

Of course we can do it.

The question we discussed earlier and which I agreed to revisit on Report Stage is whether, in the absence of an agreement, the Minister should be able to make the call. I do not think, however, we could provide for a body which has precedence over others, particularly given the effect on other Acts.

The Minister is creating a parallel system for financial services, which he is obliged to do under legislation. In the event of a failure to resolve these matters the agency would have supremacy. I will withdraw the amendment but will resubmit it on Report Stage.

It would give the agency precedence over the Garda Síochána in other criminal matters.

I do not know how the Minister dug that point up.

Amendment, by leave, withdrawn.
Section 75 agreed to.
Section 76 agreed to.
SECTION 77.

I move amendment No. 61:

In page 64, subsection (4), line 42, to delete "32(3), 49(1) and (2)” and substitute “32(3), 48(5), 49(1) and (2)”.

Amendment agreed to.

Amendments Nos. 62 and 78 are related and will be discussed together.

I move amendment No. 62:

In page 64, subsection (4), lines 42 and 43, to delete "67(4) and 73(11).” and substitute “67(4), 73(11) and 98(5).”.

The purpose of these amendments is to strengthen the powers of the agency with regard to the enforcement of product safety regulations. The change will make it an offence to distribute, sell, offer for sale or supply in the course of providing a service a product that is the subject of a direction prohibiting its placing on the market, requiring withdrawal of the product from the market or imposing other restrictions on placing the product on the market. The amendment is intended to cover all eventualities envisaged, including a situation where use is made of a recalled product in supplying a service. These directions can be issued under a range of statutory instruments governing general and specific product safety as set out in Schedule 7 to the Bill. These statutory instruments, in turn, transpose a number of European Council directives as set out in Schedule 8 to the Bill.

The section is in addition to the provisions of any of those statutory instruments that create an offence in respect of a contravention of a direction given under these statutory instruments. The section will provide more comprehensive and streamlined powers to inspectors of the National Consumer Agency in enforcing measures taken to protect the public from dangerous products.

The proposed new section 98(5) creates a summary offence and it is necessary consequently to add this offence to the list of offences at section 77(4) that would be prosecuted only on a summary basis, which is the purpose of amendment No. 62. A person who contravenes the provisions in this head will be guilty of committing an offence and will be liable on summary conviction to the fines and penalties of Chapter 4, Part 5 of this Bill.

Amendment agreed to.
Section 77, as amended, agreed to.
Sections 78 to 84, inclusive, agreed to.

I am informed that amendment No. 63 is ruled out of order, being outside the scope of the Bill.

I cannot understand how any matters relating to miscellaneous provisions should be out of order or outside the scope of any Bill. The Minister brought forward a companies amendment Bill last year which had many miscellaneous provisions and there was no difficulty about their being in order. I cannot understand how anything relating to the functions and powers of the regulator, which are part and parcel of consumer issues and are the subject of my amendment, should be ruled out of order. I am told it is because they involve a charge on the Exchequer but my amendment, proposing to get rid of certain people, will save money.

I have made a ruling. I can read the whole relevant paragraph if the Deputy wishes.

The Chairman did not explain why the amendment was ruled out of order.

Amendments Nos. 63 to 71, inclusive, and amendments Nos. 75 to 77, inclusive, in the name of the Deputy, have been disallowed as being outside the scope of, or not relevant to, the provisions of the Bill. For example, amendments Nos. 63 to 71, inclusive, relate to setting up a new national consolidated regulator and amendments Nos. 75 to 77, inclusive, relate to amendments to the Competition Act 2002.

The scope of a Bill is determined by its provisions. For example, Standing Order 125(1) provides that it shall be an instruction to all committees to which Bills may be committed that they have power to make such amendments therein as they shall think fit, provided that such amendments be relevant to the provisions of the Bill and are not in conflict with the principles of the Bill as read a Second Time.

I am not much wiser but I will come back to it before Report Stage.

I thank the Deputy.

Amendments Nos. 63 to 71, inclusive, not moved.
Sections 85 to 87, inclusive, agreed to.
SECTION 88.

I move amendment No. 72:

In page 71, subsection (1), between lines 43 and 44, to insert the following:

"(c) the establishment, form and operation of quality assurance schemes referred to in section 8(2)(m);”.

Amendment agreed to.
Section 88, as amended, agreed to.
Sections 89 to 91, inclusive, agreed to.
NEW SECTION.

I move amendment No. 73:

In page 73, before section 92, to insert the following new section:

92. — (1) In this section "Act of 1942" means the Central Bank Act 1942, as amended by, amongst other enactments, the Central Bank and Financial Services Authority of Ireland Act 2003 and the Central Bank and Financial Services Authority of Ireland Act 2004.

(2) Section 2(1) of the Act of 1942 is amended by inserting, before the definition of "Appeals Tribunal", the following:

" ‘Agency' means the National Consumer Agency established by theConsumer Protection Act 2007;”.

(3) Section 5A of the Act of 1942 is amended by inserting the following subsections after subsection (3):

"(3A) The functions of the Agency specified in subsection (3B) are, in so far as they relate to a financial service provided by a regulated financial service provider, also functions of the Bank and subsections (3C) to (3F) have effect for the purposes of this subsection.

(3B) The functions of the Agency referred to in subsection (3A) are the following functions of it under theConsumer Protection Act 2007, namely, functions under—

(a) section 8(1), (4), (5) and (6) of that Act in relation to —

(i)sections 41 to 54 (other than section 48) of that Act, and

(ii) the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 (S.I. No. 27 of 1995 and S.I. No. 307 of 2000),

and

(b) sections 30, 69, 70, 71, 73, 79, 80, 82, 84, 86 and 88 of that Act.

(3C) Subsection (3A) operates to vest in the Bank, concurrently with the vesting in the Agency of those functions by theConsumer Protection Act 2007, the functions specified in subsection (3B).

(3D) Accordingly —

(a) the functions so specified are, subject to any relevant co-operation agreement entered into under section 21 of the Consumer Protection Act 2007, capable of being performed by either the Agency or the Bank, and

(b) subject to subsection (3F), references to the Agency in the provisions of that Act specified in subsection (3B) are to be read as including references to the Bank and those provisions otherwise apply.

(3E) Subject to subsection (3F),sections 78, 83 and 85 of the Consumer Protection Act 2007 apply to the Bank as they apply to the Agency and, accordingly, references to the Agency in those sections are to be read as including references to the Bank.

(3F) Where any section of theConsumer Protection Act 2007 specified in subsection (3B) or (3E) provides for anything to be done in relation to the Agency (whether the giving of notice to it, the submitting of a thing to it or the doing of any other thing) then, if a co-operation agreement entered into under section 21 of that Act so specifies, it is sufficient compliance with the section concerned if the thing is done in relation to the Agency or the Bank as is specified in that agreement.”.

(4) Section 33S(2) of the Act of 1942 is amended by substituting the following paragraph for paragraph (f):

"(f) the Consumer Protection Act 2007;

(g) the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 (S.I. No. 27 of 1995 and S.I. No. 307 of 2000);

(h) such other enactments and statutory instruments as are specified in the regulations.”.

(5) Section 33AK(3) of the Act of 1942 is amended, in paragraph (a), by inserting the following subparagraph after subparagraph (iv):

"(iva) the National Consumer Agency, or”.

(6) Schedule 2 to the Act of 1942 is amended —

(a) in Part 1, by inserting the following item after the item relating to the Investment Funds, Companies and Miscellaneous Provisions Act 2006:

"

No. — of 2007

Consumer Protection Act 2007

The whole Act

",

and

(b) in Part 2 —

(i) by inserting the following item after the item relating to the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994):

"

S.I. No. 27 of 1995

European Communities (Unfair Terms in Consumer Contracts) Regulations 1995

The whole instrument

",

and

(ii) by inserting the following item after the item relating to the European Communities (Supplementary Supervision of Insurance Undertakings in an Insurance Group) Regulations 1999 (S.I. No. 399 of 1999):

"

S.I. No. 307 of 2000

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2000

The whole instrument

.".".

Amendment agreed to.
Sections 92 to 94, inclusive, agreed to.
SECTION 95.

I move amendment No. 74:

In page 74, to delete lines 21 to 24 and substitute the following:

"6A. — (1) The Minister (following consultation with the Minister for the Environment, Heritage and Local Government) may prepare and issue to local authorities guidelines, in writing, regarding the performance by them of their functions under section 6 in relation to bye-laws.".

This would give more certainty with regard to casual trading licences and the manner in which casual trading is carried on in each local authority area. The Minister should issue some guidelines, in consultation with the Minister for the Environment, Heritage and Local Government, with regard to these matters to see if the Casual Trading Act is operating in the spirit it was initially outlined in 1995.

With regard to casual traders, we have already provided that the Minister may by statute issue guidelines to local authorities on the uniformity across local authorities in the treatment of casual traders and regulations coming into force. The Deputy has added the term "following consultation with the Minister for the Environment, Heritage and Local Government", but we would clearly consult any stakeholder. We do not have a problem consulting the Minister for the Environment, Heritage and Local Government on these issues, nor do we anticipate any future Minister would have. We have provided for the key point of guidelines.

Amendment, by leave, withdrawn.
Section 95 agreed to.
Section 96 agreed to.

Amendments Nos. 75 to 77, inclusive, are out of order as they are outside the scope of the Bill.

Amendments Nos. 75 to 77, inclusive, not moved.
SECTION 97.
Question proposed: "That section 97 stand part of the Bill."

Amendment No. 75 relates to the Competition Act and certain defined limits we were trying to enshrine to speed up the process and reduce cost. I am bewildered as to why it is not acceptable because it has great relevance to issues of consumer protection.

The Deputy will have to take it up on Report Stage.

Question put and agreed to.
NEW SECTION.

I move amendment No. 78:

In page 75, before section 98, to insert the following new section:

98. — (1) In this section "relevant direction" means a direction, for the time being in force, given under any of the statutory instruments specified inSchedule 7, being a direction —

(a) prohibiting the placing on the market of one or more products or requiring one or more products to be withdrawn from the market, or

(b) imposing restrictions on the placing on the market of one or more products.

(2) In this section a reference to a product concerned is a reference to a product to which the relevant direction relates.

(3) If a relevant direction is given to a person, being a direction to whichsubsection (1)(a) applies, any other person who knows of the direction shall not do any of the following things, namely:

(a) distribute;

(b) sell;

(c) offer for sale;

(d) supply in the course of providing a service;

a product concerned.

(4) If a relevant direction is given to a person, being a direction to whichsubsection (1)(b) applies, any other person who knows of the direction shall not —

(a) in a case where the restriction concerned prohibits the doing of that particular thing in respect of the product — do any particular thing referred to in subsection (3) in respect of a product concerned, or

(b) in a case where the restriction concerned does not prohibit the doing of that particular thing in respect of the product — do any particular thing referred to in subsection (3) in respect of a product concerned otherwise than in accordance with the terms of the restriction.

(5) A person who contravenessubsection (3) or (4) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.

(6) This section is in addition to the provision of any statutory instrument specified inSchedule 7 that creates an offence in respect of a contravention of a direction given under that instrument.”.

Amendment agreed to.
Section 98 agreed to.
Schedules 1 and 2 agreed to.
SCHEDULE 3.

I move amendment No. 79:

In page 80, to delete lines 19 to 27, and substitute the following:

Official Languages Act 2003 (No. 32 of 2003)

First Schedule

(a) in paragraph 1 of the Irish text—(i) in subparagraph (1), delete “Oifig an Stiúrthóra Gnóthnaí Tomhaltóiri”, and (ii) in subparagraph (2), insert “An Gnhíomhaireacht Náisiúnta Tomhaltóirí”. (b) in paragraph 1 of the English text—(i) in subparagraph (1), delete “Office of the Director of Consumer Affairs”, and (ii) in subparagraph (2), insert “National Consumer Agency”,

".

The purpose of this technical amendment is to provide for the substitution of "National Consumer Agency" for "Director of Consumer Affairs" in the Irish version of the Official Languages Act 2003. The Schedule currently provides for a substitution only in the English version and it is a requirement of the Act that amendments be made in both languages.

The Minister, Deputy Ó Cuív, will be happy with the Minister.

Amendment agreed to.
Schedule 3, as amended, agreed to.
Schedules 4 to 8, inclusive, agreed to.
Title agreed to.

I thank the Minister and his officials for their assistance with today's proceedings. Does the Minister wish to make some concluding remarks?

I thank you, Chairman, and the members of the committee for facilitating today's passage of the Bill through Committee Stage. This is important legislation and I appreciate the co-operation in the debate that ensued and look forward to continuing the discussion on Report Stage.

Bill reported with amendments.