When the debate was adjourned last night, I was dealing with Section 3 and analysing the provisions of that and the following section. I pointed out that the commission, in doing the task which it is proposed to impose on them by Section 3, were given no guide or directing principle; that, in my view, the provisions of Section 3 were utterly useless; and that the section ought to be dropped from the Bill. The section proposes that the commission should, on their own initiative or at the request of an association representing persons engaged in the supply and distribution of any kinds of goods, prepare and publish fair trading conditions. It is only the commission, on their own initiative or at the request of an association of traders, that can formulate these fair trading conditions.
Where is the public interest safeguarded in that provision? We used to learn, as students of equity, that the original principles of equity as they were being built up varied with the chancellor's foot. The trading conditions which are to be prepared and formulated by the commission under Section 3 will vary with the Minister's foot because these people who are members of the commission, as I intend to point out in a few moments, are entirely political personages, creatures of the Executive, and it is the opinion of these people that is the only guide to what are fair trading conditions.
I wonder would it be relevant to inquire whether it would be possible for such a commission to formulate trading rules, rules of practice, which would provide for the situation in which a wealthy trader bought up the entire stock of a small industry at current market prices and then proceeded to sell well below the market price and close up that industry, or the situation in which a similar wealthy man buys a line of goods manufactured by a particular industry at the current market prices and sells them at less than cost in order to put that particular line of business out of business? These are things that have happened. Where in this Bill is a situation of that kind dealt with either by the opinion of political nominees or an Order of the Minister under the subsequent sections? I see no reason whatever for Section 3.
If this commission on its own initiative proceeds to form opinions, I have no doubt that its opinions will be actuated and motivated by the political views of the Minister who appointed them and that will emerge when an examination is made, as I hope to make, of the method of appointment of this commission. Their opinions will not be their own because they are not, and will not be, independent persons. They will be under the thumb of the Minister and of the Department. I have no faith in any such system or in an opinion formulated on that basis. If the commission even endeavour to formulate fair trading rules on any sort of proper principles, they will be merely models which will be pigeonholed and no association of traders or manufacturers will take the slightest notice of them.
If they are formulated at the request of a trade association, these fair trading conditions will undoubtedly be formulated, if they can secure it, in a way which will suit the interests of the persons in that association and when these so-called fair trading rules are formulated, if it does not suit the big people, the big business firms or the people in that association, they will take not the slightest notice of them but they will see that the little people comply with these rules. I can see no justification whatever for Section 3. The commission has no principle to guide and no rules to direct it. We have not even got a suggestion such as there is in the Monopolies and Restrictive Practices (Inquiry and Control) Act, 1948, as to the type of evil that is to be eradicated.
I should like to pass from the consideration of Section 3 to a consideration of the type of commission to be set up, because whatever value—and I can see no value whatever in the section—it might have, if the members of this commission were independent personages, it cannot possibly have the slightest value when the method of appointment and method of control is analysed, investigated and laid bare. The fair trading commission is appointed under the rules contained in the Schedule, and the first rule provides that the permanent members of the commission shall consist of a chairman and not less than two or more than four other members. They shall be appointed by the Minister. If it would not be something in the nature of an abuse of the proceedings of the House, I would put down on Committee Stage an amendment directing that inverted commas be placed in front of and after the word "permanent". It is a mere mockery to call the members of this commission permanent because, a few passages further on, in Rule 4, there is a provision that the Minister may remove a member from office. He appoints a member and calls him permanent, in inverted commas, because he may remove him at any time.
Further than that there is an even worse provision than those I have referred to, because it appears that, whenever the Minister thinks a permanent member is unable to discharge his duties he may appoint a temporary member, but even if he does not think a temporary member is necessary, he may appoint temporary members for the purposes of a particular inquiry. I submit that those provisions condemn this commission as entirely political, and I say it was deliberately designed to be political and that it vitiates the entire purpose of the Bill. What sort of confidence can the public, the small business people, have in a commission the members of which are appointed by a politician, controlled by a politician and removable by a politician?
This commission is entirely too political, and if we could dissociate ourselves from our own political controversies in this House, if we could consider this objectively and apart altogether from the political differences which divide, and strongly divide, the political Parties here, and look at this in principle, I say that there is not a Deputy here unless he has the bureaucratic mind of the present Minister for Finance or the present Minister for Industry and Commerce who would not condemn the system in this Bill. The idea and the type of commission is obviously borrowed from the British Act of 1948 to which I have referred but in that Act there is some attempt at giving the members of the commission established under the Act some degree of independence, some separation from politics and from direction by the Government or by a political Minister because one of the provisions of that Act is that the members are appointed for a term of years and no member is eligible for reappointment. Here it is solemnly proposed to set up a commission appointed by whatever Minister is in power at the time and called, if you please, a permanent commission but any member of that commission can be removed a minute after his appointment if he does not do what the Minister tells him. That is the type of commission that is here invoked in connection with the property and the liberties of the business community here.
So far as I am concerned, I will do everything I possibly can to remove these clauses from this Bill. The very fact that they appear in the Bill confirms me in the suspicion I have that this Bill is not intended to do anything drastic and is so designed that it cannot do anything effective. Look at the possibilities for corruption that are involved in this measure. In order to judge this matter objectively, let us forget that the present Government is in power, so that the remarks I have to make may not be directed either to Fianna Fáil or Fianna Fáil Ministers. I do not care what ministry is in power. I do not care to what Party or Parties the Government belongs, the particular method of appointment and the particular method of removing the members of this commission, together with the powers that are given to the commission and the provisions that are contained in certain sections of the Bill, such as Section 6, sub-section (2), that the commission shall comply with the direction of the Minister as to the nature and scope of inquiry made at his request demonstrate that this commission is designed solely as a political instrument to carry out a particular policy of a particular ministry at a particular time, and for that very reason it is open to tremendous corruption or to the appearance of corruption, which is as bad.
It may be that the particular Party from which that ministry would be formed would be impervious to the fact that certain vested interests and certain big business people give large subscriptions towards Party funds. The public would know that that was being done and, however incorruptible the ministry might be, the very fact that the system was such as to lead people to believe that would make it inevitable for business people to take a chance and give a large subscription to the particular Party from which the Government would be formed, in the hope that that subscription would percolate into someone's mind and so affect Government policy or the Minister's policy as to bring about the result that they at least might have some influence on the question of how far this commission, this political body, would interfere or take care not to interfere in a particular business or industry.
I submit that this commission vitiates the entire purpose of the Bill. It is too political. It is too bureaucratic. If the House gives this Bill to the Government we will have an extension of bureaucracy. The machinery devised by this Bill, if it is put into operation, will involve a big staff of civil servants. Worst of all, it will involve the employment of a number of unproductive workers and the creeping in of that bureaucratic machinery into the liberties and the livelihoods and the business of private citizens. These considerations would, in my opinion, be more than sufficient to condemn the machinery that is suggested here.
Leaving aside these very powerful considerations, even if this machinery is set up in the very unwarranted manner in which it is proposed to establish it, the machine will work very slowly indeed. It will take decades before any inroad will be made towards eradicating the restrictive practices about which we complain. The machinery provides for an inquiry either on the initiative of the commission itself or at the request of the Minister. I think it is entirely illusory to put in that phrase—the commission on its own initiative. The commission will not act on its own initiative because it will be a political body and it will take good care not to show any sign of independence or initiative since it will be subject to political control at every second and every hour of its existence. It will act upon the direction of the Minister. If the Minister directs, it will hold an inquiry. Even then the Minister can direct the scope of the inquiry and say: "Just go that far. Here is a restrictive practice. I am being bothered about it. The public-are making a nuisance of themselves and I must do something. Inquire into it, but take care you go only thus far and no farther." That is the first step in all these elaborate stages that must be gone through before anything emerges. That will take time. Having made the inquiry, the commission must then report. We all know how long it takes a commission to report. Having reported, the Minister and his departmental officials and the officials of the other Departments must examine into the report and see how their interests are affected. That will take time.
The report, having been made and considered, must then be laid for some time before each House of the Oireachtas. That also takes time. Having done all that, an Order may be made by the Minister if the Minister thinks fit and only if the Minister thinks fit. That Order, having been made, the Minister, before bringing it to the House can, under Section 8, sub-section (2) revoke or amend the Order that he has already made before the House gets any opportunity of discussing it. But if he is not pleased to exercise those wide powers, the Order then comes before the House in the form of proposals for legislation. We all know how long it takes to get even ordinary non-controversial Bills through this House. I should say that every Order of this kind which it is sought to validate by Act of Parliament would be highly controversial in character. Votes will be taken in the passing of these Orders and in the various stages before the Bill emerges as law. What precisely is meant by Section 8 (3)? Is it intended that the Order should be just scheduled in an Act, with the proviso in the body of the statute that the Order shall take effect in accordance with the terms of Section 8 (3)? It appears to me from the terms of Section 8 (3) that this House will have no power to amend one single comma in that Order because, according to the machinery provided here, the Order must be confirmed by an Act of the Oireachtas and then shall take effect in accordance with its terms. It is, therefore, possible to conceive that an Order is made by a Minister with retrospective effect so that it will be in operation for a long time before the law gives it sanction through the machinery provided by the Houses of the Oireachtas. I do not know whether or not that is intended but at least the matter should be clarified.
I think I have said enough to demonstrate that, at best, the machinery provided by this Bill will operate slowly and ineffectually. It will also operate, unfortunately, in a manner unnecessarily irritating to those sections of the business community who carry on their business in a proper way, having regard not merely to their own interests but to the interests of the customers in general. At best it will operate slowly and it will take decades before any inroad is made on restrictive practices. At its very worst, I fear that the machinery provided may procure sanction for practices which would become fossilised in the economic structure of our State. Here you have a body set up to make fair trading practices, to make inquiries on the result of which Ministers will act. The result of that may be that this commission is acting without even the guiding principle to see that free competition and free enterprise are maintained. It has no guiding principle at all but it will go on empirically without any guiding light. The effect of that would undoubtedly be that, having no fundamental principle to guide each inquiry or each formulation of so-called fair trading rules, practices which at one time may have been justifiable will, through changing circumstances in the course of the passage of time, become restrictive in themselves and highly objectionable. The very commission which we propose to set up to eradicate restrictive practices from our business would then give restrictive sanctions renewed life.
If, as I suggested at the outset, some effort were made to clarify the principles on which we shall work, to define or at least to describe the restrictive practices at which to aim our ammunition, then those principles which we would lay down would guide and direct the commission and give new life to each of their efforts made in changing circumstances and to meet different conditions.
I object to the powers conferred on the Minister by this Bill not merely for the cogent reasons which I have already submitted to this House but also because the Minister will be put into the possession of powers which will enable him to threaten the personal liberty and the private property of many innocent business people. I heard Deputies in this House say that the more innocent you are, the clearer is your conscience and the less you have to fear from a Bill of this kind. Do we not all know that the racketeer does not care a jack straw about the penal provisions in this Bill? He is used to taking risks of one kind or another. It is the man whose conscience is clear who is most fearful and most timorous when he finds himself ignominiously hauled, as he well may be, before this commission and cross-examined and cross-questioned as if he were a criminal in the dock. The more innocent you are and the clearer your conscience, the more that sort of thing eats into your mind. We all know the old chestnut about the man who got a telegram telling him to flee because all had been found out. The innocent man wondered what he had done. That, hackneyed as it is, contains a universal truth. The racketeer has nothing to fear because it is part of his life to take risks. The decent businessman who has never done an injustice in his life and who is suddenly hauled up before this commission will be fearful and timorous of what may be said to him or of what may be said by people of him.
I have criticised this measure, but I do not want to sit down and leave myself subject to the reproach that I have offered nothing but destructive criticism. I say that a method should be found to devise a way of dealing with the evils which we seek to remedy. I suggest that certain principles should be declared—principles on which whatever body which is to act, whether it be the courts or a commission, will act, and that certain specified restrictive practices should be defined or at least described. Any trader who is hurt by these restrictive practices should have the right to resort to the courts.
I know that court procedure is expensive and cumbersome and that sometimes it involves great delay but it will not be anything like the delay involved in the machinery contained in this Bill. I think also that it should not be left merely to the individual trader to take action where those restrictive practices are in operation but that a public official should be appointed either in the Attorney-General's office or in the Department of Industry and Commerce charged with the duty of watching over the public interest in reference to trade practices of a restrictive character or operations by big businessmen for the purpose of downing their little competitors. He should be charged with that duty in the public interest. If he has initiative and sufficient money, a private trader can invoke the law. I submit that simple machinery and inexpensive methods could be devised to enable him to do so. There should be a public officer whose duty it would be to sift charges, to examine practices, and then to haul the offender before whatever courts, civil or criminal, may be thought proper.
That procedure involves the use of our judiciary and our judicial machinery. One would think from some of the things that people say in this House and outside it—the Minister for Industry and Commerce is one of the worst offenders—that the courts of justice and our judiciary system were set up entirely for the benefit of lawyers. We set up, under our Constitution, a judiciary system and gave independence to our judiciary. That was done for the protection of the public interest. We adopted, or partly copied the system, of the separation of powers the model of which I suppose would be that in existence in the United States of America. The present Minister for Industry and Commerce spends most of his time in denigrating judicial processes and endeavouring to filch, at the expense of the judiciary for the Executive, powers which should be vested in the body set up to see that justice is done, namely, the judiciary. At the outset I said that the objection which we and everybody had to these restrictive practices and other practices by which wealthy manufacturers and traders, men of property and influence, are able to ruin their small competitors, was founded on the fact that injustice was being perpetrated. Equally, justice must be given to these people who are supposed to be charged with these practices. They are entitled to make their case and the place to make their case is in our courts.
We are also told that the law of evidence is something that prevents justice being done. The law of evidence was evolved over the centuries from experience gained in actual cases, and the sole purpose of the law of evidence is to see that truth prevails and that justice is done. I suggested as one method, the method of defining, describing and enumerating the powers, and of allowing traders to seek their remedies from the courts, supplementing that in the public interest by the assistance of a public official, whose duty would be to inquire into these practices and see that they are brought to the light of day and action taken upon them. If that does not commend itself to the Government, and the Minister for Industry and Commerce still thinks that the suggestions I am making emanate from a barrister who wants to make money out of the transaction, then at least let us have some sort of independent commission that will not be subject to the dictates of the Minister appointing it or of the Government in power.
I want to emphasise again that the objection I have to this body being political, being appointable and removable by a politician, is not an objection based upon my strong objection to the present Government. It is based on principle; no matter what Government is in power or what commission is operating, the policy in regard to these restrictive trade practices will still apply. The Minister purports to tell the House what his policy is in regard to that matter, but another Government may succeed this Government, which may well have a policy of restrictive practices, a Government which believes that restrictive practices are good for the public, and they will carry out that policy through the machinery enshrined in this Bill. If we are to have any sort of proper inquiry, any sort of hope that free enterprise will be safeguarded against those practices which are preventing the exercise of freedom of action by that system of free enterprise, then you must have proper machinery to operate the Bill. I suggest to the Minister that he should at least listen to the suggestions that are made, and use the combined ingenuity of all sections of this House to devise better machinery than is proposed in this Bill.
I entirely agree with what Deputy Dillon said about the penalties in this Bill. They are just laughable. The Minister said that they were heavy, but nobody will take the slightest notice of them. Imagine a big businessman who has been guilty of restrictive practices being overawed by a threat that he may be sent to jail for ten years. He knows very well that that will not happen. He knows very well that this being a political body, there are ways of getting at the Minister. At least he will believe that there are ways. That is sufficient for my purpose. That is sufficient to damn this Bill as being against the public interest. If it bears the appearance of the possibility of corruption, the method adopted in the Bill should be scrapped forthwith.
I agree with Deputy Dillon that the most effective way to put an end to these restrictive practices is quite apparent, if all sections in the House are resolved to see that an end is put to them. If there is co-operation here to get the best possible machinery that can be devised to achieve that purpose then you will not require your injunctions, your 40/- fines before a district justice, or your pretence that an offender may be sent to jail for ten years for offences under this Bill.