Dáil Éireann díospóireacht -
Wednesday, 28 Nov 1979

Vol. 317 No. 2

Supplementary Estimates, 1979. - Sale of Goods and Supply of Services Bill, 1978: Report Stage.

Minister of State at the Department of Industry, Commerce and Energy (Mrs. Geoghegan-Quinn)

I move amendment No. 1:

In page 5, to delete lines 12 and 13 and substitute the following:

"(2) On—

(a) a sale by competitive tender, or

(b) a sale by auction of goods of a type defined by the Minister by order,

the buyer is not in any circumstances to be regarded as dealing as consumer.".

During the Committee Stage debate reference was made by Deputy Cosgrave and Deputy Enright to the potential difficulties for the bloodstock industry arising from the Bill and I received many submissions on this question in the last 12 months, particularly from the Irish Bloodstock Breeders Federation who were concerned that the Bill would necessitate fundamental changes in the custom which had grown up in relation to sales of bloodstock, particularly as regards the exclusion of liability in respect of imperceptible defects at time of sale.

The main concern was that since auction sales were not excluded by definition from the Bill the conferring of the wide range of implied rights contained in the Bill on consumers at bloodstock auctions would create a situation in which foreign or Irish sellers would be reluctant to use Irish auction sales at all, since the conditions imposed on sellers of bloodstock were not as onerous in other countries.

The crucial issue was, of course, whether buyers at bloodstock auctions would be regarded as consumers as defined in section 3. I felt they could not be so regarded, that the vast majority of bloodstock auction buyers would be acting in the course of a business, thereby enabling the sellers in such cases to exclude their liability for defects and so on in the animal so far as it was fair and reasonable for them to do so. However, following a further meeting with the Bloodstock Breeders Federation I am satisfied that there is at least a doubt as to whether buyers at bloodstock auctions could be regarded as consumers or business buyers. In these circumstances I propose, as the amendment provides, that the Minister be given an enabling power to exempt such auctions by order after the Bill's enactment. This will enable us to see whether the difficulties posed by the federation will exist after the Bill is enacted. If the new range of provisions in the Bill do show signs of creating these difficulties at that stage, the Minister will have power to exempt such auction sales specifically. The federation have indicated that the course of action proposed would be acceptable to them.

An Ceann Comhairle

Amendments Nos. 1, 2 and 3 are related and may be discussed together.

Mr. O'Toole

I appreciate that. While I accept the Minister's view on this matter she has sympathy with the idea behind the whole thing. She mentions doubt with regard to the operation of bloodstock auctions, sales and so on. Having accepted that there is a doubt and that she may at a later stage be required to produce an order to facilitate those people who would be very badly affected if they were looked on as consumers, she refuses to insert in the Bill a section which would put everything beyond doubt—to exclude this kind of activity from the liabilities and provisions of the Bill. It is not good enough to wait and see what will happen. If that were applied to other Bills we would only have the bones of a Bill and the rest depending on orders to be introduced later depending on the working of the Bill in relation to the people directly concerned with it.

The amendments put down by Deputies Enright and Cosgrave do a specific job in this case: they exclude people involved in bloodstock sales. There is no ambiguity about it. The suggestion that their amendments be included is something with which I go along fully on the basis that it is a definite and sure way of avoiding any confusion, litigation or complications that might arise if people are caught up in the provisions of the Bill. There is no question of their being morally bound by the provisions as the Minister has accepted.

At what stage would the Minister feel it was necessary to introduce an order excluding this area of activity from the Bill? It could be too late if somebody was involved in litigation as a result of the provisions of the Bill. Could the Minister introduce an order which would have retrospective powers to get that person off the hook, a person who, in the Minister's own words, should not have been there the first day? That is what I am worried about. The amendments proposed by Deputies Enright and Cosgrave would get over that eventuality or risk. Waiting to see how it works and then applying a remedy is not the way to do this. Once it is accepted that these people are at risk the provisions of the Bill should not apply to them. I see no reason why either of the two amendments could not be accepted.

Mrs. Geoghegan-Quinn

At present the bloodstock industry is subject to existing consumer legislation. To accept amendment No. 3 would create a new dimension because we would be excluding them from any provision of existing legislation or this Bill. Having had discussions with the federation it was felt that there was a certain doubt. I had maintained up to then that sales such as those described would not have been consumer sales because the vast majority of them would be in the course of a business. When we think of the kind of money that changes hands at such an auction we must accept that these sales are business sales and not consumer sales. To do what Deputy O'Toole suggests and exempt bloodstock sales altogether would not be feasible.

In my constituency a very lucrative business goes on in the auction sales of Connemara ponies. Many of these are bought in the course of business but many are also bought by consumers for their children, family or for use at home. If we were to exempt all bloodstock auctions we would be opening the floodgates and exempting these types of sales as well. I am satisfied after discussions with the federation that there is some doubt about whether their auction sales are 100 per cent in the course of business or not. It would be the intention to make an order after consultations with the federation when the Bill is passed, when we see how it works and if these sales are being caught by this legislation. If there is a necessity for an order the Minister will have no hesitation in making one.

Mr. B. Desmond

As advised by the Minister now the section reads more effectively. It could be extended beyond pure reference in future to bloodstock sales as such. Bloodstock owners—we are considering here a particular type of bloodstock sale or auction—by and large should be reasonably happy with the amendment as proposed. It is not appropriate in a Bill of this kind to have specific reference to specific sales of a specific category. It has been argued that the inclusion of a specific reference in relation to motor vehicles was somewhat outside the ambit of the Bill but nevertheless motor vehicles are in and so be it. To have a specific exemption given to bloodstock auctions as such, and we know the different types of categories of such auctions within the industry, would be singularly inappropriate. The tidying up of that section by the Minister giving sale by competitive tender and then sale by auction of goods of a type defined by the Minister by order meets the demand. I am sure Deputies Enright and Cosgrave will feel that the case they made, which is reasonable, has been met. It is a massive industry and I would go along with the view that where one is selling by auction show jumpers, ponies or a particular type of bloodstock to try and get a definition to encompass the whole industry is not on and it is best done by order.

Mr. Enright

In fairness to the Minister she has endeavoured to go a little of the way but it is not sufficient in the circumstances. As Deputy Desmond pointed out the bloodstock industry is a most important one. Irish racing animals have a worldwide reputation for being top class. This Bill is running parallel to similar legislation in Britain but the British legislation specifically excludes bloodstock. What we will have is a situation where people will be selling bloodstock and they will not be selling at the same level or on the same terms as at similar sales in Britain.

At sales here a person selling a yearling is selling it for racing purposes. The position now is that if it is later discovered that the animal is not a very good animal the purchaser may try to rely on this Bill as it is presently framed. The situation in Britain is that they would be excluded from coming back with some complaint. I would put it to the Minister that the people who are involved in bloodstock, the people who conduct purchases and sales, are not the innocent consumer who comes to buy clothes, television sets or anything else. They are dealing in bloodstock in the normal course of their business. They are competent and know what they are about and they are prepared to come in and purchase an animal. That is the position as it stands at present. That is the position as it stands in Britain at present. This Bill, as it stood originally, would have left sales of bloodstock here in an unequal situation in comparison with sales in Britain. The Minister has moved a certain distance towards meeting this situation but she has not moved sufficiently far. To wait to see how the situation develops and then bring in an order is not enough. She should include the amendment I put down. It would be wiser, better and more appropriate.

I have not got the exact figures of the sales returns of yearlings and bloodstock but I am told that we would have about £6 million per year. In fact, it is really a matter of choice for a bloodstock owner as to whether he will sell his bloodstock here in Ireland or bring it outside the country. In this situation where there may be a possibility of bloodstock owners selling their animals outside Ireland as distinct from selling them here, we should be exceptionally careful in arriving at a situation where we may through legislation such as this discourage people from selling at home and encourage them to sell in Britain or somewhere else. I know that is not the Minister's intention and I know that is why she has gone some way to meet the situation. But it is not sufficient under the circumstances.

This is an important matter to this House and to this country. We must maintain the situation where we are the envy of many countries around the world because of the type of animals we are purchasing and the type of sales we conduct. It is in our interests to attract horse breeders from all over the world to come here to purchase animals. We are doing that at present. We are also encouraging Irish breeders to breed and sell their horses here. This legislation, as it is drafted at present, may discourage Irish horse owners and horse breeders from selling in Ireland. I know this is far from being the intention of the Minister. Although I have no interest in it myself and rarely even go to race meetings, I am reliably informed by people involved in this business that this amendment that Deputy Cosgrave and I placed on the Order Paper is regarded as being of major significance to the bloodstock industry. The Minister spoke of Ballinasloe and the Connemara ponies. I wander over there annually as well. People are not that innocent around there either. They are not going to make any mistakes.

An Ceann Comhairle

I do not think that arises under the amendment.

(Interruptions.)

Mr. Enright

I appreciate the Minister's point about the Connemara ponies and so on. It is a valid point. Many people are buying Connemara ponies for their families. The situation is that in regard to bloodstock—and if the Minister includes Connemara ponies in this I will go along with that—the situation is that the buying and selling of animals requires a certain amount of skill and knowledge and I feel there is a responsibility on the people purchasing them. But where people go to auctions at a horse fair to purchase animals we have a situation affecting the whole bloodstock industry because of this unique annual fair. I believe the Minister has met the situation to some extent but she should go the whole way because it is of particular importance.

Mrs. Geoghegan-Quinn

I appreciate some of the points made by Deputy Enright. It would be right to point out, first of all, that the British legislation does not exclude the bloodstock industry from the provisions of their Bill. What they do exclude are auctions generally, and in that instance I suppose bloodstock auctions would be excluded from their Bill. However, I have gone as far as I intend to go. I feel that the amendment as it is would enable the Minister to make an order after the passing of legislation in consultation with the federation when he and they discover that the provisions of the Bill are catching them. The vast majority of sales that would take place at such bloodstock auctions would be in the course of a business. The Deputy mentioned the figure of £6 million turnover per year at these sales. If one were to attend a sale and see the amount of money that changes hands one would realise that certainly the vast majority of buyers at these auctions would not be dealing as consumers but would be dealing in the course of a business. It would be very wrong if we were to accept either of the two Opposition amendments, because we would be telling a person buying a pony for his child that he has no protection under the Bill and that we, through an Opposition amendment, are ensuring that he is not going to have any rights. The bloodstock industry at present comes under the provisions of the old 1893 Act and to now exclude them under this Act would be creating something new altogether for the industry. They have lived with the 1893 Act and I feel they can live with the Sale of Goods Act. The federation themselves are fairly pleased with the amendment which is now before the House and there would be no delay in making an order after the passing of the Bill if it was proved to the Minister that the provisions of the Bill were catching these auctions sufficiently to warrant such an order being made.

Amendment agreed to.

Amendments Nos. 2 and 3 not moved.

Mrs. Geoghegan-Quinn

I move amendment No. 4:

In page 5, line 49, to delete "12" and substitute "18".

When this section was being discussed during Committee Stage Deputy B. Desmond suggested that the period of 12 months during which summary proceedings for an offence could be initiated was not long enough or was unnecessarily short. Given the type of legislative measures that are in the Bill and taking account of the points that he made, I consider the suggestion a good one and the present amendment reflects my agreement with his suggestion that the period should be extended from 12 to 18 months.

Amendment agreed to.

Mr. Enright

I move amendment No. 5:

In page 9, line 35, to delete "whose business it is to deal in motor vehicles" and substitute "the course of a business".

A matter of concern to those engaged in the motor trade full-time and whose main business is selling motor cars is that people are involved in the purchase and sale of motor vehicles as a sideline only, dealing on a part-time basis but, nevertheless, in the course of business. I want to ensure that the provisions of this Bill are wide enough to encompass all people who are dealing in the sale of motor vehicles in the course of business and far more people than the legislation as drafted at present includes.

Mrs. Geoghegan-Quinn

I am satisfied that the wording in section 13 (3) as it stands, describing the kind of person who will be required to issue a certificate, that is somebody whose business it is to deal in motor vehicles, is sufficiently exact to cater for the type of situation which Deputy Enright wants the section to cover. An important intention of this subsection is to oblige the legitimate dealer and the rogue dealer to issue a certificate the contents of which would be in such form as the Minister may prescribe by regulation. This certificate would be to the effect that the vehicle is at the time of delivery free from any defects that would render it a danger to the public which, of course, would include persons travelling in the vehicle. Both the legitimate and the rogue dealer are covered in the existing subsection (3). Therefore, the amendment proposed by Deputy Enright would be superfluous and would not add any greater clarity or clarify for the benefit of the consumer what is already in the section. It would not provide greater protection than the section does at present.

Mr. B. Desmond

I reiterate the view that I expressed previously, that the proposition put forward by Deputy Enright is fair and reasonable. A situation could arise where reputable motor traders who are engaged on a whole-time basis in this trade will be reluctant to deal in the second-hand trade particularly and will urge a person who wants to trade-in his car to go away and sell it privately on the basis that they do not wish to incur the possible future litigation which might arise because they will be obliged to issue a certificate, whereas those who dispose of vehicles privately—and I suppose quite a substantial amount of the trade is done privately—would not require to produce a certificate. The incentive to the full-time motor trader to keep out of that end of the market seems to be built into the Bill as it is at present. On that basis, since the Minister intends to retain the certificate, I would prefer to see that everybody on the point of sale, whether engaged wholly in the business or on a purely casual basis, would have to provide a certificate. In that context at least there would be a degree of equity between the full-time, reputable motor trader and the part-time individual—and quite a few part-time individuals are engaged in it even though they have not been tracked down by the Revenue Commissioners as I suppose they will be in due course. On that basis Deputy Enright's proposition has merit.

Mr. Enright

There is some concern amongst the motor traders that a considerable number of people will endeavour to get around the section. Such people do not add to the reputation of the motor trade and in fact can do damage to its reputation. As the Bill is drafted at present there is a danger of accelerating the effort of people to avoid its provisions. There are many ways of doing that. People make an effort to get around it by passing a vehicle on to a third party and disposing of it through a private sale using a telephone number. Deputy Desmond informed us during the Committee Stage debate that in one newspaper he noticed 15 to 18 advertisements carrying the same telephone number offering different cars for sale. The section may encourage people to make greater efforts to get around the law. In my view it was intended to give protection to the consumer in the purchase of cars. It will give such protection to those who purchase vehicles from reputable dealers but it will not ensure that other people involved in the sale of cars as a sideline will be caught. Such people make a lot of money from those transactions. They do not have garages, do not sell petrol or spare parts. They make profit without responsibility. If the amendment is not accepted the situation will be left hanging in mid-air. I have no doubt that such people will come up with many ideas to avoid the provisions of the Bill.

Amendment, by leave, withdrawn.

Mrs. Geoghegan-Quinn

I move amendment No. 6:

In page 9, between lines 47 and 48, to insert the following:

"(5) Regulations under subsection (3) may apply to motor vehicles generally or to motor vehicles of a particular class or description (defined in such manner and by reference to such things as the Minister thinks proper) and different forms of certificate may be prescribed for different classes of descriptions of vehicles.".

The Deputies will recall that during Committee Stage I proposed an amendment to the section the effect of which would have been that a certificate of roadworthiness would have been required only where a dealer was dealing in secondhand cars rather than new cars. The Opposition Deputies who spoke vigorously opposed the amendment on the grounds that the need to ensure freedom from dangerous defect was just as important and applicable in the case of new motor vehicles as it was in the case of secondhand ones. Deputy Desmond went on to suggest that the Minister be given enabling powers to prescribe one form of certificate for new vehicles and another type of certificate for secondhand vehicles. I saw merit in that approach and I agreed to look at it between Committee Stage and Report Stage. It was on that basis that I withdrew the amendment.

Having considered the matter further since Committee Stage I have decided that it would be useful and desirable for the Minister to have powers to give him several options when making regulations under this subsection. It could be desirable, for example, that he would have one form of certificate for new cars, another for secondhand cars, another for motor cycles and another for buses. The amendment I am now proposing contains this flexibility by enabling the Minister to prescribe different forms of certificates for different types of motor vehicles. Having regard to the discussion which took place on Committee Stage I believe that Deputies Enright and Desmond will accept my amendment on the basis that it gives that flexibility and ensures that a certificate can be prescribed for whatever type of vehicle a person purchases.

Mr. Enright

The amendment is reasonable and fair. I am in agreement with it. There is a necessity to define the types of certificates and vehicles. I have some reservations about the implications of some of the items mentioned in the Bill but the amendment goes some way to meeting those reservations. I have reservations about criminal liability being introduced into some of the consumer legislation. It is the first departure of such a nature and is something that must be watched to see if it will develop for good or not. The amendment shows that the Minister has endeavoured to go some of the way towards levelling off the situation.

Mr. B. Desmond

Since the debate on Committee Stage I have had an opportunity of consulting with the trade on the situation. It is only fair to tell the Minister that there is still a great deal of concern about what is intended by the section and the precise effect it is intended that the section should have. The trade is appreciative of the assistance received in the original discussions in relation to the Bill. The Bill, I have no doubt, will be debated extensively in the Seanad and this matter will be fully investigated. In my view there is a need for further discussion between the Minister, her staff and the trade to tease out some of the implications which will inevitably arise on the adoption of this substantially revised section. Inevitably the question arises as to what I meant in the context of the definition of a certificate. We were worried that a certificate solely applied to secondhand cars to the exclusion of new motor vehicles. It is being put to me that I should explain the kind of certificate that would be issued. Those engaged on a full-time basis in the trade are worried that they may find themselves in some kind of consequential litigation of a substantial nature.

In entering into a Committee Stage debate I put those considerations out of my mind. Since then strong arguments have been put to me that perhaps we rushed that section. Therefore, there is a need to spell out the exact consequences of the development of a certification system. It is a most complex matter. In the definition section there is no mention of what a certificate constitutes. The matter is up in the air in that sense. Since this is a big industry in which litigation can be of massive proportions the Minister should have another look at this section before it goes to the Seanad and have further discussions with the trade. This morning the Minister said that there would be certificates for new cars, certificates for secondhand cars and certificates for vehicles such as tractors, trucks and so on. Only those engaged full-time in the trade will be obliged to provide certificates. It has been put to me that we might create a situation where the full-time trade would have contractual obligations placed on it and would be perpetually avoiding being dragged through the courts.

The Minister should have another look at this section. My colleagues in the Seanad will be attempting to tease out with the Minister the precise legal implications of the section. Perhaps further consultations with the trade might be productive. We have been trying to devise a Bill which would be effective in the long term, even on a co-operative basis.

An Leas-Cheann Comhairle

Before the Minister concludes, the Chair would point out that there is a minor printer's error in the last line of the amendment. It should read "prescribed for different classes or descriptions of vehicles." The word "of" should be "or".

Mrs. Geoghegan-Quinn

I appreciate the points made by Deputy Desmond. The trade cannot say that they did not receive co-operation from me and from the officials of the Department whenever they requested a meeting. On Second and Committee Stages I said my intention was to have the best possible Bill; that we would not be putting people out of business for the sake of putting them out of business. I said that we would be providing protection for the consumer as well as providing a measure of protection for the manufacturer and the trader. The amendment being discussed goes a long way towards meeting many of the trade's objections.

It would have been dangerous to outline in the definition section what a certificate would contain. It was always the intention that the certificate would be formulated on the basis of discussions between the trade and the Minister after the passing of the Bill. In other words, the trade would have points to make on what should be included in the provisions of a certificate. As the people immediately concerned with the matter the trade would have a better idea than most of what should be contained in a certificate. After the Bill is enacted, it may be necessary to amend the types of certificates that would be issued. Therefore, it is better that the certificate and its provisions are not defined.

I am sure that there will be a great deal of discussion before the Bill goes to the Seanad. Many of the Senators have strong views on this section. If there is any way in which I can co-operate with the Senators and the trade, I shall be delighted to do so.

Amendment agreed to.

Mrs. Geoghegan-Quinn

I move amendment No. 7:

In page 10, line 6, before "statement" to insert "written".

When this section was being discussed on Committee Stage, Deputy O'Toole asked whether the definition of a guarantee meant an oral statement or a written statement. I replied that my legal advice was that a guarantee meant only a document or a notice or a written statement but that it had to be in written form. At the time I felt that it was not necessary to include the word "written" before "statement", and I am still of that opinion. In order to remove any doubt that a consumer might have, I am proposing that the section be amended as requested by Deputy O'Toole so that a guarantee will now be defined as a document or a statement or notice but must be in written form.

Amendment agreed to.

Mr. Enright

I move amendment No. 8:

In page 22 after line 17, to insert the following:

"52.—(1) (a) If any dispute or question arises with regard to compliance by a person with any provision of this Act, any person concerned may apply to the Director of Consumer Affairs to have the matter determined by his arbitration and any decision given shall be legally binding.

(b) An appeal shall lie to the Circuit Court against a decision of the Director under paragraph (a) of this subsection.

(2) The Director of Consumer Affairs shall have power to summon witnesses, demand production of all necessary books, receipts and documents to enable him to investigate and adjudicate on the matter.

I referred to this matter in detail on Committee Stage. I have in mind the setting up by the Department of special courts. The Director of Consumer Affairs should have authority to deal with offences that arise under the legislation. As the Minister is aware, the special courts established in Britain have been successful and I feel that we should set up courts to deal with these matters.

The number of cases being dealt with by our existing courts is responsible for long delays. The atmosphere in our existing courts intimidates those who have to attend them. People are nervous of attending courts. If a case relating to a faulty television set is being heard on the same day as cases involving serious crimes of violence, robbery, and so on, most people who are affected by this legislation will not wish to go near the court. By having these cases processed through the courts we are practically negativing this Bill. We should have special informal courts. Their decisions would be binding and the atmosphere would be much more informal than in the existing courts.

If a person wishes to bring a complaint, the Director of Consumer Affairs will have the power to summon witnesses and to ensure that documents, receipts and papers are produced. Cases will be dealt with in the same way as they are dealt with in the existing courts. They need not necessarily be heard in the existing courtrooms. It is essential also that special courts should be set up so that people will not be involved in too much expense.

Claims could be kept within the limits of the District Court jurisdiction. This would not cause any difficulty. I hope that all actions under this Bill will eventually be heard under the jurisdiction of the Director of Consumer Affairs. If a person is aggrieved at the decision of the Director of Consumer Affairs there will be a right of appeal against that decision to the Circuit Court. In this way cases could be heard at a reasonable cost and in an informal atmosphere.

The Minister may ask how these cases will be heard. It could be something like redundancy payments cases. They could be heard in all the larger towns. The Director of Consumer Affairs could appoint people who would appoint others to hear these cases. The courts would be small. This would be very helpful and very welcome. We have delayed too long in this regard.

The Minister said she is in the process of having discussions with the Minister for Justice in this regard. These discussions should proceed. This amendment would strengthen the Bill. The setting up of the special courts would cost the State very little. Their powers would be enormous. They would be able to deal with an amazing number of claims. They would have the desired affect of allowing people to have their cases heard and decided in an informal session. If they were aggrieved they could go back to the Circuit Court for a final decision. This type of smaller special court is necessary.

Mrs. Geoghegan-Quinn

I could not agree more with the Deputy on what he has said about the present courts system and how impossible it is for consumers to get their cases heard within a reasonable time. As he said, the whole atmosphere in a courtroom, for the consumer and for the settling of a small claim, is not conducive to allowing a person to discuss his case in an informal manner. For a long time I have felt we should have some system for dealing with small claims so that aggrieved consumers could discuss their claims reasonably in an informal setting and get a fair hearing, and a quick hearing which is very important. Very often under our present court system a case can drag on for months, and even longer. As a member of the legal profession, I am sure Deputy Enright is concerned about the effect the present courts system might have on any claims consumers might bring.

As I said on Committee Stage—and this was recommended by the National Consumer Advisory Council in their report—a small claims system should be set up. I also made the point that discussions were going on between officials from my Department and the Department of Justice. To confer arbitration functions on the Director of Consumer Affairs at this stage would be to pre-empt the result of the talks which are going on. It would be my intention to ensure that the provision of some type of small claims court would not be delayed in my Department or by me. I will be pressing the Minister for Justice and his officials to ensure that a quick solution to the problem will be forthcoming from that Department.

The second part of Deputy Enright's amendment creates certain problems. If the director's role was extended to include arbitration matters, it might involve him in acting in a dual capacity. Deputy Enright will appreciate that the director could be acting as prosecutor and adjudicator in certain circumstances. For instance, under section 13 of the Bill, a dispute could arise involving the issuing of an erroneous certificate of freedom from serious defects. In such a case, the director might be in a position to initiate summary proceedings against the person who committed the offence. However, it would put the director in an impossible position should he also be called upon to adjudicate between the person who issued the false certificate and the consumer who suffered damages as a consequence of the offence.

From another point of view it would be unrealistic to expect the director, who may have already decided to prosecute a motor dealer for issuing a false certificate, to render an impartial judgment in a related case arising from, say, the same dealer's breach of the implied condition, also contained in section 13, but which could be totally separate from the question of a certificate. Another argument against the appointment of the Director of Consumer Affairs as an arbitrator in consumer disputes is that the very title of the post might suggest a bias in favour of the consumer though such an assumption might not necessarily be valid. At any rate I am of the opinion that parties to a dispute who are not consumers might be reluctant on this basis to agree to the director acting as an arbitrator.

In this context it is legitimate to draw an analogy between the director on the one hand and the machinery we have at present to deal with restrictive practices. Before the enactment of the Restrictive Practices Act in 1972, the then Fair Trade Commission found themselves with both investigative and arbitrary powers, but the 1972 Act removed that anomaly and two distinct entities were created. There was the Examiner of Restrictive Practices who would have an investigative and prosecuting function and the Restrictive Practices Commission themselves who would have power to make decisions based on the examiner's investigations. In that case the principle was established that it was better to have two distinct entities. Therefore, I would consider it wrong for us now to bring in a section in this consumer area as proposed by the Deputy when a similar provision was tried originally in the trade area but found to be wanting in that area.

I agree fully with the general idea of the amendment which is that we should have a type of small claims court system, but as I have said many times the idea of giving the director both investigative and arbitrary powers was found wanting in the trade area and, consequently, should not be attempted now.

Mr. Enright

As I said on Committee Stage there is a great necessity for the type of court system that I am proposing. If we fail to set up such a system immediately this legislation may not be strong enough to fulfil its pious aspirations. This is regrettable because the Bill has a lot of merit. It is going a long way towards protecting the consumer. While I appreciate that the Minister of State is discussing this matter with the Minister and that, in turn, the whole question is being discussed at senior level with the Department of Justice, I do not believe that during the lifetime of this Dáil we will have courts of the type I am proposing and I am not being anyway political in saying that. I say this because a long time elapses between the time an idea is mooted here and the time of its actual implementation. The whole process is prolonged. I fear that the situation will not be any different in regard to these special type courts, courts to deal with the smaller type of claim.

It is regrettable that on the occasion of this legislation we are failing to take the opportunity of establishing such courts. I would not foresee any danger in the Minister pre-empting the discussions. Instead, she would be wise to pre-empt them and to bring in this special type of court without further delay. The vast majority of those with whom I have discussed this Bill agree with the type of court system I am proposing. Despite all the talk about civil legal aid, the situation is that we do not have a system of civil legal aid. In these circumstances a person bringing a case under this legislation, regardless of how small the case might be, would risk a big loss in terms of costs. That, in itself, would be a deterrent to most people not to get involved in the courts regarding whatever grievance they might have.

The Minister has told us that she would not be in favour of having the Director of Consumer Affairs placed in the invidious position of being both a prosecutor and an arbitrator. I doubt if that situation would arise, but before the Bill goes to the Seanad I appeal to the Minister to consider an amendment which would provide for the setting up of special-type courts. If we miss the opportunity of doing this now, many years may elapse before another opportunity presents itself and many people will be greatly disappointed at our failure to grasp this opportunity.

I am sure that the Minister is aware of the long delays in having cases heard in any of the courts. In the High Court, for instance, the delay in having a case heard is usually of the order of 18 months. The people who are likely to be concerned most with this legislation will tend to be the poorer and least educated people who are innocent enough to allow themselves to be wronged in regard to purchases but these are the very people whom the Minister is insisting must go through the courts in the ordinary way in regard to their complaints.

The smaller-type court would be the ideal set-up for such cases, a court in which the atmosphere would be informal and where people would be encouraged to speak freely. There would be no necessity for wigs and gowns and there would be no necessity for all the trappings which are at present associated with the legal profession in the courts. There would be ordinary people in the court I am referring to, dressed in ordinary clothes and speaking ordinary language. The cost involved in civil courts will be greatly reduced in those smaller type courts. I feel the Minister has an opportunity to set up courts like this under this Bill. If she misses it the opportunity is lost.

Amendment, by leave, withdrawn.

Bill reported with amendments and received for final consideration.

Agreed to take Fifth Stage today.