Seanad Éireann díospóireacht -
Thursday, 15 Dec 1977

Vol. 87 No. 11

Consumer Information Bill, 1976: Committee Stage (Resumed).

Question again proposed: "That section 2, as amended, stand part of the Bill."

Mr. Alexis FitzGerald

The section of the Principal Act which this section proposes to amend is the section which relates to the definition of trade descriptions and the definition of what are false trade descriptions. I do not think it is possible to consider this section, or indeed the sections which succeed it, without being clear as to the precise nature of the amendments we are making in the Principal Act, the fundamental preceding section of the Principal Act which defines the offences. This section of the Principal Act, defines trade descriptions and false trade descriptions. We are proposing in a later section of this Bill to amend the section preceding this section in the Principal Act which defines the offen-offences. The Bill proposes a rather important change and it is fair to say that the memorandum accompanying the Bill has drawn the attention of Members of the House to the nature of that change.

There are two offences under the Principal Act, an Act which, incidentally, although we are amending it under the title of a Consumer Information Bill, applies to all transactions between traders as well as transactions between traders and consumers. Indeed the Bill can catch buyers as well as sellers for criminal offences. Under the Act which we are amending and even the Act after we have amended it as proposed, there are two separate offences. The first is the application to goods of a false description. That is a separate offence and it is important to note that the memorandum accompanying the Bill draws our attention to the fact that the law as it stands, before amendment, makes the application of a false trade description by any person an offence whether that is in the course of trade, business profession or not—the application of a false trade description by anybody, whether he is in business or not is an offence.

The second offence is in relation to the sale of goods to which a false trade description has been applied, whether by the person who is selling them or not, and that offence can be committed by the buyer of these goods as well as by the person who is selling them. That first change, which is to be made in a later section of the Bill, is that people who applied false trade descriptions to goods, who are not in business at the moment, will not be liable any longer—they are being taken off the hook in relation to liability; they will be liable henceforth only if they are in trade, business or a profession.

With regard to the changes proposed in this section—I am going on a little bit about this because it is the most important part of the debate— we must try to understand clearly what we are proposing. Quite important changes are being made in the definition of "false trade description". First of all, under the Act which we are proposing to amend, under the law which exists, the description must be false and if it is not false there is no offence.

The Bill proposes to extend the meaning of a false trade description to include a misleading trade description which need not be false. As an example, somebody advertises a holiday home as being near the sea, suitable for children, but when you actually reach the place you find a 100-foot sheer cliff—and that you would have to travel ten miles before your children could play on the seashore. The statement was true, it was near the sea, but it was misleading. It would be under this Bill as amended a false trade description. "False" and "misleading" are now caught and this is desirable.

The Bill proposes to go further to deal with indications which are false or misleading, that is to say, an indication which may not be a description at all of anything: for example, a speedometer which has been put into a car to give a false or misleading indication of the usage of the car. That indication, which is false or misleading as to the car and its use, is now made a false trade description and as such will be caught under the Act. Another indication would be to make an alteration in a car that would indicate the car was fit for the purpose for which it was being bought—that it had strength. This is an indication which could be conveyed by concealing work which had been done on the car to convey a misleading indication of constructional strength. From the point of view of the seller, he can be liable even if he did not apply the false trade description. Even if he did not give a false indication or did not know about it, he is liable as having committed an offence under this Bill. The liability does not involve any guilty knowledge. In regard to liability under section 2 of the Principal Act the referable definitions of which are contained in another section, it does not matter how vicariously the offence may have been. It may have been carried out by a partner. Indeed a partner was convicted of an offence under the Principal Act though he did not know anything about what his partner was doing. He did not know at all that there was a false description being made by his partner, or that his partner was selling something to which a false description was being applied, yet he was vicariously liable.

There is another case where somebody in the employment of another was directed by his employer not to do the very thing he did and his employer was liable. It was an absolute liability. There was no question of mens rea and guilty knowledge but because he had sold something to which a false trade description had been applied he was found guilty of the offence and was given a criminal record. We can on a later section deal with the defences to that offence, but the point is that if there is a breach of an absolute prohibition a charge will lie to which there may or may not be a defence.

The indication must be of material degree. When I was speaking earlier on this section. I made the point that in one section of the Bill the wrong term is used—"material respect" is used where it should be "material degree". There is a difference between the two, and it is necessary to say that virtually we are amending a British Act. This is not at all unusual when we are dealing with law reform—we have similar laws to theirs. It is in many ways convenient because they have such a considerably advanced commercial system and many more cases go to their courts. We get the benefit of their judicial interpretation of words. The British changed the term "material respect" to "material degree" because they found it necessary to do so to ensure that the materiality of the matter was such as to induce a purchase. It must not only be misleading in a "material respect" but it must possess such a degree of materiality that it is capable of inducing a purchase by the person to whom the goods are offered.

In following the British Act it is worth while that we should know at this stage that the British Act was found to be unworkable, antique, abstruse and unsuitable, and in Britain they tore the whole thing up, and introduced the 1968 Trade Descriptions Act, the largest part of which is contained in this Bill.

It is not a redefinition of the first two or three sections of the Principal Act. I will argue that the Bill should not go forth from the Houses of the Oireachtas in its present form as a Consumer Information Bill. It is in itself not in a condition to be consumed, not capable of being understood easily by the people who have to consume it and understand what their rights or duties will be. Despite the difficulties of draftmanship, we have to face up to a total amendment of the first five sections of the Principal Act. If we had done that we need not have changed very much of the language in it. Some explanations would have been necessary for some of the language, but we need not have changed very much of what we have in the Act to have made the Bill a much more easily understood document which would be of benefit to consumers.

There are rich consumers as well as poor consumers, and there are poor traders as well as rich traders and a Bill such as this is in their interest. There are all sorts and conditions. A man is a producer in one part of his life and a consumer in another part. This affects both parts. We realise that we are here engaged in enacting new legislation with regard to trade description of goods. Under the Act which we are amending there is no provision with regard to the description of services. We had a definition of goods which I criticised on the first section of the Bill and it is sufficient to say that the definition we have got takes in property and the sale of houses. I will argue later that this is right and that there should be special provision with regard to the trade description of that type of goods. The question arises as to whether an offence which involves an absolute prohibition without guilty knowledge should arise in the case of the sale of such "goods" as property or as to whether some guilty knowledge should arise in the case of the sale of such "goods". The question arises as to whether there should be some guilty knowledge involved in somebody's liability if he is selling a house or any kind of property. Let us be clear about it with regard to houses, if they are goods they are not living accommodation merely. Every type of property is involved, mixed accommodation, home income type houses, sales of factories and offices, sales of land—they are all involved and defined as goods under this Bill, and rightly, for the reasons I have given. We have chosen to take the Merchandise Marks Act, 1887, the UK Act, and looked at the amendments the British made in it in 1926 and 1953—these amendments did not apply to us. We have looked at the Moloney Committee Report set up in 1962 which led to the Trade Descriptions Act, 1968, amended in 1972. We have had a look at all of these and we have also studied the consultative document which was issued by the person whose business it is to see that this kind of code is enforced in England.

We have had under consideration and taken some of his suggestions in what we have said on this section and in other sections of this Bill. We have also taken into account the further reports from the Director General of Trading, which he made when, having issued that consultative document, people came back and made their observations on the various proposals. There are differences of views here and there. We, in our legislation, have come down on one side or another in relation to these matters.

It is worth noting that in doing this thing, which I think is sensible—the House should at least consider the matter—we have moved in the British fashion, which is quite contrary to what is common on the Continent. The more common thing on the Continent is to have a more general law with regard to false trade descriptions without the false trade description receiving the type of listing which we have got in this section. This is the type of harmonisation which we might expect to see the EEC engaged in. I am quite content to take the situation that is offered to us by the Government on this and to work on that basis, taking note that we are doing it differently from the way the Continent of Europe and the other EEC Members are doing it. We are doing it the British way, but in doing it that way we are no doubt taking advantage of a legal system we understand and giving our judges the benefit of the persuasions available to them in the judgments of United Kingdom colleagues.

I have already referred to one phrase which appears in subsection (2) (c), "in a material respect". I think that should be "in a material degree".

I want now to refer to another matter which has been pressed for by various people in Britain. It is not in any of the British Acts yet, it is new to these islands. A number of these sections are new to these islands but I did not find any of them that did not appear in some British document. That is understandable. They are commenting on a code which we are proposing to operate. The matter I am worried about is the phrase

the contents of books or films or as to their authors, as to the contents of cinematograph films, etc.

For example a commentator on that proposal, and he was a person who recommended that there should be a change of this kind in Britain, said this would put an end to ghosted articles. That is a very interesting position and it seems to arise with regard to the position of people who lend their names to articles other people write. Apparently both would be guilty of a criminal offence under this. The commentator also suggested that, unless it was carefully drafted, it might catch the lurid covers of paperbacks, very often showing a Jane Austen in a situation that Jane Austen herself might well have imagined but did not choose to put on the outside of a book—a misleading indicator of the contents of the book. What is the position if books are ghosted for some British Prime Minister and serialised in an Irish paper? Is the paper which serialises them committing an offence if it is proved that they were in fact ghosted?

As we know with regard to new editions of old books, there is this business of abridging. For example, what is the canon applicable to the Bible in regard to a dispute between the sects as to what is the proper canon? There seems to be great problems with regard to new editions, republications and abridgments. What have people to do to prevent themselves from committing a crime? Take note of the fact that the false description may be applied by somebody else, but if you are the seller you will be committing an offence. What is the position then of Irish booksellers? Have they to discover whether all the books were ghosted, whether this is the complete edition, whether there is any wrong description involved? I have the greatest doubt about the desirability of following that particular suggestion. With regard to subsection (2) (h):

as to any physical characteristic of any goods not referred to in the preceding paragraphs of this definition,

I wonder is that positioned in the right way, because subsection (2) (b) relates to the place or country in which any goods were manufactured. Subsection (2) (d) refers to the person by whom and the time at which any goods were manufactured, produced, processed and so on, and subsection (2) (f) refers to any goods being the subject of an existing patent, privilege or copyright. These are not physical characteristics, so it seems that in positioning this is wrong. It should follow only when you have listed all the physical characteristics first. A welcome and completely new paragraph (j) deals with:

the identity of the supplier or distributor, or the standing commercial importance, competence or capabilities....

Why not the identity of the manufacturer or producer as well as the identity of the supplier or distributor? There is something which is missing and seems to be rather important when you are dealing with secondhand things like cars. Subsection (2) (1) refers to any history of any goods not referred to in the preceding paragraphs, including their previous ownership or use. The history of the "use" could be as important as the ownership. I think the language of all these paragraphs which list the characteristics amounting to a trade description should be carefullly looked at.

I come to the point with regard to the amendment of section 3 (1) which we are proposing in this. There seems to me to be a curious position, and I would like the Seanad's view on it. We have defined goods in subsection (1) to include ships, vehicles and aircraft, land, things attached to land and growing crops but we have left section 3 of the Principal Act unamended with another definition of goods. In the Principal Act the expression "goods" means anything which is the subject of trade, manufacture or merchandise. It is an odd Bill which contains two separate differing definitions of the same word for all the purposes of the Act. Which of the two should we have? It seems to me that this is the type of problem which can only be solved by having a complete redraft of the provisions of the Principal Act. As it stands, we have one definition in section 1 and we have left another definition, through our failure to amend it, in section 3 of the Principal Act. That requires improvement and change.

I would like to draw the Parliamentary Secretary's attention to the Industrial Research and Standards Act, 1961. Section 25 (8) of that Act states:

The use of a standard mark in connection with a commodity, process or practice which does not conform with the standard specification relating to such commodity, process or practice shall not be deemed to be an application of a false trade description to goods for the purposes of the Merchandise Market Acts, 1887 to 1931.

If that is intended to be left unamended, I think there should be some reference to the effect that the definition of false trade description does not affect the provisions of that. If it is intended to be amended, we should know about it. I suggest that there should be a provision in this for not treating as a false trade description something which is an approval mark under an EEC directive. There should be some general provision in this Bill which will allow these directives to be incorporated into this area in a clear way so that when we are reading this code we will know where to find the matter. That is all I have to say at this stage.

Mrs. Geoghegan-Quinn

In many of the points made by Senator FitzGerald he was agreeing that we had done the right thing in this section. I will confine myself to the points with which he disagreed. The first one was the application of false trade descriptions to goods, which he says is an offence even if the goods are not for sale. That is not so because "goods" is defined as anything which is the subject of trade, manufacture or merchandise.

Mr. Alexis FitzGerald

I did not intend to say that. There were two separate things: the person applying the false description and guilty of the application of the false description need not be the seller.

Mrs. Geoghegan-Quinn

That was my second point. The Senator also mentioned the mileometer on the car. For instance, if it was altered before the sale and the person who was selling the car was not in fact the person who altered it, nevertheless he would be liable. Therefore, it is an offence even if the person has no knowledge of it. That is the way it is. However, I feel there are adequate defences provided in section 22, and we will come to section 22 in time to prove whether the person knew in fact that this alteration was being made.

The Senator also made the point that mens rea was not now an ingredient of an offence. All of us will agree, certainly on this side of the House, that this is rightly so, because up to now intent was too difficult to prove. It does not matter to the consumer concerned whether there was intent or not. The fact is that the consumer has been misled or deceived and has suffered injury as a result and is entitled to protection.

The Senator disagreed with subsection (2) (c) of the section. He felt that "material respect" should read "material degree". The difference is between respect and degree: respect measures the wrongness of the description and degree takes into account the extent of the damage done. The term "false trade description" is defined in the old 1887 Act, section 3 (1) as "false in a material respect". Our law and that of the UK are the same as regards material respect. The term "false trade description" described as "false in a material respect" is the test of the falsity and the material degree is the test of how far the consumer has been injured. I think the latter, the test of how far the person has been injured, is the basis of the offence. They were the main points the Senator raised.

Mr. Alexis FitzGerald

With respect, I think the Parliamentary Secretary has misunderstood me. I was not suggesting that the consumer should not have protection. I was explaining what the position was as I understood it. I did not need the correction. The application of the false description is one offence and the sale of the goods falsely described is another. The consumer should be protected from both. I am merely saying that they are two separate offences. I was merely describing the situation. I left open the question of defences until we get to the section relevant to them.

Regarding the Parliamentary Secretary's point that the UK legislation with regard to material respect is the same as that contained in the section, I have some difficulty in accepting that. Section 2 (2) (c) states:

Anything which, though not a trade description, is likely to be taken for an indication of any of the matters specified in the definition of "trade description" in the said section 3 (1) and, as such an indication, would be false in a material respect, shall be deemed to be a false trade description.

The British Act states:

Anything which, though not a trade description, is likely to be taken for an indication of any of the matters and, as such an indication, would be false to a material degree, shall be deemed to be a false trade description.

I think the Parliamentary Secretary should correct her statement that what I said was incorrect. What I said was correct. I have just read the equivalent section in the UK Act and that is precisely as I said it was. I had already offered the reason for the change, which is that the indication must be of such a degree that it induces a purchase. It used to be, in the British code, "material respect". It is no longer and this has been the case for ten years.

Mr. Jago

Have I permission to ask the Parliamentary Secretary a question in relation to an analogy about a motor car?

An Leas-Chathaoirleach

The Senator is free to speak at any time on the section.

Mr. Jago

There was reference to section 22. I gather that if a motor car was wrongly repaired by a mechanic and the owner of the garage was then sued under the Act, he could point out the name of the person who was actually responsible but he would have to give notice in writing seven days before the case and then that person would be guilty of the offence. It is in an industrial relations situation that I see here. Can you imagine an employer accusing his employee, in writing, seven days before a case? Am I correct in that?

Mr. Alexis FitzGerald

It relates to another section. I would be wholly in agreement with what the Senator says which is really lending emphasis to the point I am making on this section. I am grateful to the Senator for his intervention. It is not sufficient when we are defining a crime to assume the defences will be all that easy to operate. A breach of any one of these is a crime. We ought to be very exact in our definition of what constitutes the crime because we may not find that the defences are adequate in every case or are operable in every case. Perhaps that is a debate for that section.

I would like to say with regard to the definition of a trade description, which the Parliamentary Secretary did not go into, that when we come to Report Stage we ought to have considered carefully the language used. For example, what are the physical characteristics of property which are contained in any of the descriptions here? Are we going to deal with property sales on a mens rea basis and, if so, why? I would be inclined to think that it ought not to be on a mens rea basis but that we ought to define carefully—and this is the place to define it—the kind of information which, if wrong, gives rise to an offence. It would be a false trade description to say one has a freehold if one has only a leasehold. It would be a false trade description to say one has a 999 years lease if one has only a 99 years lease. It is a false trade description to give the term of lease without indicating that there are only ten or 20 years left of it. This should be narrowed down to the sort of matters about which people ought to be right, otherwise until we change the real property law here the complexity of title alone is such that it will create problems.

With regard to the misdescription of a house, I am not sure that the number, quantity, measure, gauge, capacity or weight are relevant to a house. What is relevant? Place or country in which the house was manufactured, the mode of manufacturing, the person by whom it was manufactured? None of these seem to relate to a house. It seems to be public policy—and I think it is right—that property should be caught within false trade description provisions. It is not the UK position at the moment. We have nothing to imitate; we have no guidance on this. We must decide whether we are going to have an absolute prohibition, which would mean that we would have to amend this trade description, or whether we are going to leave it in the mens rea category which is dealt with in section 6. If it is going to be an absolute prohibition to say certain things, to indicate that certain things are that which they are not, we should remember that this is a criminal offence and, as Senator Jago has pointed out, there may be great difficulties about making a defence. In any case, to be a defendant in a criminal proceeding is something that we do not want people lightly to be. This is in a sense, while we are basing it on an old Act—which perhaps explains why I am going on about it so much—quite a revolution in our practice. If I am right—and it is a question I would like to ask the Parliamentary Secretary at this stage —the Merchandise Marks Acts in relation to trade descriptions are a dead letter in so far as there are provisions for bringing criminal prosecution. I would like to know how many of them have been brought under the absolute prohibition section. There may have been mens rea and there may have been fraud. I looked up the Law Reports and found one reference only since the foundation of the State to a trade description prosecution and that was a pretty unseemly type of affair. We are having a revolution. I wonder what structure of administration we have to deal with it. To encourage truthfulness and to enforce the law against people who tell lies may be in certain cases good and I am all for it but let us know what we are doing. If we are going to make the liars guilty of crimes we have to be very precise as to the nature of the lies that will make them criminals. They may not even be liars. They may be people who take goods into their shops with descriptions on them they know nothing about. Those descriptions could be made abroad, for example. Descriptions could be made in some other part of Ireland. They may not have any very great competence in knowing whether the descriptions attached to them are correct but selling them with these misleading trade descriptions will render them liable for crime.

Mrs. Geoghegan-Quinn

Senator Jago referred to the point which Senator FitzGerald made about the mileometer and this being altered without the knowledge of the seller. Senator Jago also made the point about the person giving notice and the offender being named. I understand that then the offender would be the one who would be prosecuted.

Mr. Jago

It would be rather a precarious position for an employer bringing an action like that against an employee.

Mrs. Geoghegan-Quinn

Senator FitzGerald inquired whether mens rea would only apply to property.

Mr. Alexis FitzGerald

Yes, it did not seem clear from the Bill whether property was intended to be dealt with under the absolute prohibition type of offence or whether it was going in under mens rea, whether people who were engaged in the business like estate agents and such people who were going to be caught for rendering services or selling something that was not rightly described, which would be a mens rea case, or whether the actual people engaged in trade or business who sell houses as goods were going to be caught under the offence which is involved in this description. When we are talking about property we are talking about all property. Even after we have abolished ground rents there will still be leasehold interests for all sorts of reasons. The abolition of ground rents anyhow would relate only to dwellinghouses. There are all sorts of other properties. I do not know what the policy decision on this may be and I understand the difficulties. The debate is extensive as to whether it should be treated as a mens rea case or whether it should be treated as an absolute prohibition. I am personally open to hearing what people have to say on the subject. If it is to be treated as goods I am merely saying that the language of trade description here does not seem to me any of it except possibly the history of any goods. Every solicitor within sight. and I have one next to me, should shiver at the possibility that if he makes a mistake in his abstract of title and omits somebody who owned the house at the right time or puts in some document that is not relevant that he will be guilty under that type of error which constantly occurs among the best of us.

History of title, for example, surely that is not intended. History of title shall not be intended. If somebody makes a blunder there he may be civilly liable or his client may be and he is liable to his client but it should not be a criminal thing. But to sell something to somebody as being freehold which proves not to be freehold —that ought to be a crime. That is a degree of carelessness which, subject to the defences not being available, ought to be punished. This should be strictly limited, particularly when we are moving into such a new field as this where everybody is not as careful as they ought to be with regard to what they say they are offering for sale.

Mrs. Geoghegan-Quinn

I understand that mens rea is being removed and therefore for property as well. In fact, property would not be treated any differently.

Mr. Alexis FitzGerald

Forgive me.

Mrs. Geoghegan-Quinn

The Senator wanted to know if property under this Bill would still be dealt with under the mens rea and I understand that property will not. It will be dealt with by absolute prohibition.

Mr. Alexis FitzGerald

I see. I argue very strongly indeed that the nature of the description which is caught, if it is not true, ought to be defined in relation to property. There is no good in codding ourselves. When selling old boots one is selling something different from selling a warehouse or a factory premises. A different type of physical characteristic attaches to a house. If one is selling lands it is likewise. We ought to have and we do not have in the old code, nor is there in the similar code in the UK, any attempt to deal with this property situation because property is not in the UK legislation. It is only in speculatively in the UK under the mens rea if the state agent's services are wrong. It is thought possible to be caught there but even that is doubted. I think it ought to be in goods. If a person gives the wrong rateable valuation, gives the wrong rent, he gives the incorrect length of lease, if he gives indicatons which are material on these matters and which induce the purchase, then I think there ought to be some consequence of that in the criminal code. We ought to have it more closely defined.

Mrs. Geoghegan-Quinn

Any anomaly regarding the leasehold which may arise during the course of the sale of a house or property is liable anyway under the present law. The Senator mentioned that one could not describe a house as to the quantity of a house or its measure or capacity of weight, but the characteristics of it would be the fitness for purpose. It would be fairly obvious whether they were misleading. People advertise houses for sale for one reason or another and when one goes to look at the house one might find that the advertisement was misleading, whether or not the intention was there to mislead. This Bill would tighten the law so that now when a person, an auctioneer or an estate agent advertises property for sale he must give an accurate description. For most consumers the buying of a house is probably the most important purchase they make in their lives and they would be very particular about going to visit the premises. The point was raised in the other House that there may be certain people—they are very few and far between—who would buy just on a recommendation on paper. It is a dangerous thing to do. I feel it would be fairly evident whether the general description of a house indicated its fitness for purpose.

Mr. Alexis FitzGerald

With great respect, fitness for purpose is just possibly one of the things that would be caught, but it seems to be the only one. This business of whether it is fit for commercial use, whether it was occupied as a residence or a flat for any time during the last stretch of years—this is a matter which is very difficult for the people investigating title to find out. I agree with the Parlamentary Secretary's view that it would seem all wrong to have a Trade Description Act which would exclude the most important purchase a man is likely to make in his life and that that ought to be included.

I merely argue that there ought to be an apt and precise definition of the kind of misdescription which is caught. The Parliamentary Secretary said—or did I hear her incorrectly?—that if one misdescribed a title or something at the moment that one is caught. One is caught civilly but not caught criminally. There is no criminal offence involved and I thought we were talking about criminal offences and I think we ought to be. Though questions of importance do arise here on which nobody seems to be quite clear. There are different arguments. There will be an amendment, which in general I support, with regard to including vehicles whether they are sold in the course of business or not. If somebody is selling his own house and he is not expert in the business, he may make a misdescription through inexpertise. Should this be a criminal offence? The Bill as we have it will affect somebody in business, trade or profession who sells a house or is in the business of selling houses. In either situation it is intended that the house should be caught if falsely described. I take it that is the intention. Lots of houses are bought and the once-a-lifetime transaction takes place outside that situation from people who are not in the business of selling houses and they are left outside. I think, as we are moving into a new field, that is the way to go about it, first by making the people in the business of selling houses alert to their duties as regards proper descriptions of houses. We ought to have a clear definition of what has to be described which if misdescribed or misled, there is any indication which leads to mis-description, then there is crime. Creation of crime should not be a lightly undertaken business. I am all for giving people protection. Here we are having an absolute liability where people may be making mis-descriptions without being aware of them.

Mrs. Geoghegan-Quinn

I think Senator FitzGerald could go on arguing the sections for a long time.

Mr. Alexis FitzGerald

We could.

Mrs. Geoghegan-Quinn

Both of us could.

Mr. Alexis FitzGerald

One does not do it on one's own.

Mrs. Geoghegan-Quinn

Senator FitzGerald is concerned whether any of these in fact fit in. We discovered that fitness for purpose does, in fact, fit in for the selling of property. I think paragraphs (c), (e), (h) and (i) would as well if we consider the materials of which the house is constructed, that they must have reached a certain standard. For example, the roofing of the house, the blocks and all the other things that go into the make-up of the house. As regards the last point, I agree with Senator FitzGerald. That is exactly what we are trying to do. We catch everybody under the Bill except the person who is selling his own house privately. It is important that that person should be protected and allowed to do his own private selling. But everybody else outside that is caught under the Bill.

Mr. Alexis FitzGerald

I am bound to say that I do not find that satisfactory. I invite the Parliamentary Secretary to reconsider this, to read the consultative document on this problem and to read the commentaries which have been made on this matter. If she wants them she can find them in the New Law Journal. I am not talking rubbish. If I am talking too much I am very sorry but I do not think it is too much for a very grave issue. There ought to be separate treatment of property. There ought to be clear indication of what constitutes such a mis-description of property that people can be convicted of criminal offences with regard to it.

Between now and Report Stage if it were possible for the Parliamentary Secretary to indicate any change of mind on that, or that there might be something worthwhile in what I say, it would save me an infinity of trouble in drafting to have it properly done by people highly skilled in the business rather than poorly done by somebody who is not.

I want to end the discussion on this section by repeating that I think the Parliamentary Secretary and the Minister ought to consider reframing the sections of the Merchandise Marks Act which deal with the offences and the descriptions so that one would have these in a readable form in this document and without having to go around the place with thick volumes bringing together a lot of different Acts. We should have all the material relative to consumers' activities in one Act. I know it is a difficult thing to amend that Act but I do not believe it is impossible. All you need to do is to amend the Merchandise Marks Act in so far as the particular sections affect trade descriptions, that they are repealed to the extent that they affect trade descriptions and reinstated when they do not. If the draftsman wants a precedent for it he can look at the Copyright Act, 1963 and he will find how much is saved in that, where an Act was abolished but orders made under it were saved.

The Parliamentary Secretary can save all she wants of the Merchandise Marks Act, 1887 but I imagine she would tremble at the idea of doing a codification of all that. That Act should be amended in so far as it affects trade descriptions and the rest of it should stand. We would then get rid of something the Parliamentary Secretary did not deal with. It obviously has to be dealt with. We cannot have a Bill with two separate definitions of such a vital word as "goods". That is the effect of trying to do it this way. We have two separate definitions of "goods". We have a definition in section 1 of the Bill and we have a definition of "goods" in section 3 (1), as amended, of the Principal Act. There will have to be a couple of amendments. If we are going to have a couple of amendments we might as well have more to make the thing better. We must not be satisfied with the second-rate if we can make it first-rate. My desire is to try to make this first-rate. I am not critical of the intent, the object or views expressed by the Parliamentary Secretary about much in this Bill. I believe certain things could be done to improve it.

Question put and agreed to.

Section 3 agreed to.

SECTION 4.

Mr. Molony

I move amendment No. 3:

In page 4, after line 52, to add the following subsection:

"(4) Notwithstanding any provisions of the Acts or of the foregoing subsections of this section, this Act shall apply to sales of vehicles otherwise than by way of trade.".

I was interested in the Parliamentary Secretary's remarks in the Dáil on Committee Stage and her reference today to the inclusion of private sales of houses. In the Dáil she seemed very sympathetic to the idea of including private sales of houses and she said that she would consider the matter in this House. She has obviously changed her mind on that. I have given the matter some thought and I am inclined to agree that private sales of houses ought not to be included, partly for some of the reasons that Senator FitzGerald has mentioned in relation to property generally.

I take a different view so far as the private sales of motor vehicles are concerned. As the Bill now stands the only sales of cars that will be covered are sales by way of trade or business, in other words, sales by garages or car dealers of one sort or another. Unlike houses, cars are a smaller consumer commodity in terms of value or price and moveable in the sense that it is very easy for a garage proprietor to sell a car through an employee or through a box number. I know that sales through box numbers are included in the Bill. It is very easy for a garage proprietor to arrange the sale of a car and give the clear impression that it is a private sale and so avoid coming within the scope of the Bill. For that principal reason the Bill ought to be amended.

The Parliamentary Secretary made the point in the Dáil that the principle of the Bill is to catch people who mislead in the course of business and not people who in the conduct of their own private lives decide to sell their cars. That may be the purpose of the Bill as she sees it. It was not the purpose of the Principal Act, which this Bill amends, because, as Senator FitzGerald has already pointed out, section 2 of the Principal Act provides that every person who applies any false trade description to goods shall be guilty of an offence. That would include a private individual. In effect, it is already a crime for somebody to apply a false description to a car and then sell it. I am anxious to see that the victim of the sale of such a car should reap the benefit included in section 17 and be able to avail of the notion of the compensatory fine, as defined in section 17.

As matters stand, the number of cars sold privately is enormous. Anybody who reads the evening papers particularly will see the vast number of cars that are sold privately. It is also a well-known fact that cars can be doctored up. A car with a serious engine problem can be doctored by a mechanic to last for sufficient time to sell the car. In addition, it is well-known that the milometers in cars are changed regularly. Cars are described as being in prime mechanical condition when the contrary is the case. This has become a common practice. It is a highly undesirable practice and the only way to overcome it is to ensure that it is a crime and to ensure that a person who suffers because of the commission of such a crime has a realistic remedy open to him.

Deputy O'Toole made the point in the Dáil that the smaller garage proprietors particularly are likely to arrange to sell their cars privately to avoid coming within the scope of the Bill. The reputable car dealers would be happy to see a change in the Bill because their reputation is being damaged by smaller dealers. I know the vast majority of smaller dealers are ordinary decent businessmen, but there are people who are completely unscrupulous about the way they conduct themselves in regard to the standards they maintain.

The answer the Parliamentary Secretary may give to this is that anybody who falls victim to such an unscrupulous private individual has a civil remedy and can sue. I made the point on Second Stage that it is very difficult to call that a realistic remedy because it takes such a long time to get to court. When cars are sold through box numbers perhaps the only time the victim will ever have met the person he will subsequently wish to sue will be when he bought the car from him. He may not be too sure of his address. He may have bought the car through a box number and have given the seller cash when he received the car. Therefore he may have difficulty in finding the person to sue. In addition, he has to suffer the delay in going to court.

We are talking of Circuit Court jurisdiction in relation to most secondhand cars. The delays in Dublin at the moment are so great that from the commencement of proceedings it may take up to two years before a case is heard. In addition to this one has to have the sheriff collect on foot of your judgment. He will perhaps send you back a nolle bone, that there is nothing available for him to seize. Then, one may have to resort to District Court proceedings under the Enforcement of Court Orders Act. All in all, it is possible that four or five years after a person fell victim to such circumstances he might collect something for his trouble. That is not good enough. We should avail of any opportunity we can to get out of that situation and to help people who find themselves caught under such circumstances.

If we amend the Bill as I suggest, the amendment will be a discouragement to those people who are abusing the present system. It will be such because they will realise, firstly, that it will definitely be a crime and, secondly, that where it occurs the resources of the State will be available to catch the wrongdoer and bring him to justice. Finally, as I have already said, the person who falls victim will be able to benefit from the application of the compensatory fine which the court will have power to make under section 17.

I know the Parliamentary Secretary takes the view that it would not be practical to extend the Bill in this fashion. She feels that it would not be capable of enforcement. I cannot understand why she says that. If, for example, I were to fall victim to such a sale, I presume my first step would be to tell the Garda and they would take it from there. If it were possible to detect it, it would be detected. If it proved impossible to detect, there it must lie. That is the same as any investigation or prosecution of any criminal offence.

I also know that the Parliamentary Secretary will refer me to the provisions of the Consumer Protection Bill, which we have not seen yet. It is not fair to ask us to accept that as a reason for not pressing an amendment such as this because, after all, we have not seen that Bill. It may be that that Bill does not adequately cover the position. I ask the Parliamentary Secretary to accept the amendment.

Mr. E. Ryan

I certainly would oppose this amendment. It is very important to preserve the distinction between the situation where somebody is selling something in the course of trade and somebody selling something in another way. Everybody in the kind of situation which Senator Molony describes—buying a car from a private individual—will approach it in an entirely different way, if they have any sense. They will approach it on the basis that they must have the car examined. They should approach it in an entirely different way from the way in which they would buy a car from a trader. It is important that this distinction should be preserved because in the end the pendulum would swing a little bit too far the other way— people would be more lenient towards traders because the distinction between traders and non-traders would be blurred.

There is another aspect to this which should be realised. Many private individuals who sell cars may give descriptions of the car in a general way. They may genuinely say it is a fine car without knowing whether it is a good car or not. They just bought the car, used it for a few years and then sold it. They really have no idea how good or how bad it is. Naturally they will say it never gave them any trouble. It is not fair to hold private individuals to the kind of vague recommendation they give to a car they are selling because they genuinely do not know. There is a distinction between the trader who is expected to know exactly how good or how bad the car is. A fair description of a car is expected from the trader. I do not think the same can be expected from a private individual. It might have an effect opposite to the kind of effect Senator Molony is suggesting.

The third point I make is this. If you are going to make a rather fundamental change in the law in this way, why only for vehicles? There are a hundred and one other things. If you are going to adopt that approach, if you are going to say that people should be protected in regard to vehicles they buy from the private individual, why not other goods? Although I sympathise to a considerable extent with Senator Molony's objective, on balance, I am very much against making this amendment.

Mrs. Geoghegan-Quinn

The points I wished to make have been made by my colleague, Senator Eoin Ryan and in fact have been referred to by Senator Molony himself. As I said in the Dáil and I repeat here, the whole principle of the Bill is to catch sales in the course of business or trade and not private sales. The one argument of Senator Molony I would be sympathetic to is the one in which he says that we would like to catch the individual who, though he is not openly in trade or in the garage business, may sell in the course of the year a certain number of cars—perhaps buying a car this month and selling it next month and making a profit and therefore in business, although he is not openly in business.

I feel that under this Bill such persons would be caught because it could be shown that they are selling in the course of a trade although they are disguising this in the form of a private sale. As the Senator said—I reinforce this argument which I put forward in the Dáil—this would be almost impossible to bring in under the Bill, the regulation of the bona fides of private sales of cars. He mentioned that a car bought by a person may not be fit for the purpose for which a person wants it, it may not be in proper mechanical repair. All of those things will be covered under the Consumer Protection Bill. It must be remembered that a Consumer Protection Bill was published in May of this year by my predecessor. I hope—I said this in the Dáil—that the Consumer Protection Bill will be introduced in the next session of the Dáil. I do not imagine it will be the very same: there were certain provisions in this Bill at the beginning which have been amended by Government amendment. I would feel that the same thing may be the case in the Consumer Protection Bill. However, the fundamental principle of the Bill will be there; very many of the provisions which were in the Bill published in May, 1977, will still be there. Therefore, protection of that nature for the road worthiness of the vehicle, or whatever other description is given as to its fitness for purpose, will be caught under the second Bill.

What Senator Eoin Ryan said is true. What I may consider to be a car in very good mechanical repair or that has given me relatively no trouble perhaps for two years may, when I sell it to Senator Molony, cause a lot of trouble. However, I am not selling it for that purpose and I am not trying to deceive anybody. I could not accept the amendment.

Mr. Molony

I accept that there are two sides to this. However, I feel strongly that, because of the number of cars being sold privately and because of the abuses that exist in that field, there is a very strong case to be made for the inclusion in this of cars. I do not accept that, simply because the purpose of the Bill is to cover people in business or trade, it is a good thing to include the private sales of vehicles or anything else. I do not think that we should just say that the overall purpose of the Bill is that and we will not do anything else. We should take the opportunity if it exists.

I do not know what will be in the Consumer Protection Bill when it is introduced. If, in fact, it does all the things that I want to do in this Bill, well then many of the arguments made by the Parliamentary Secretary and made by Senator Eoin Ryan seem to have a very hollow ring about them. I am not concerned about sales by private individuals who are honest. I believe that anybody who sells a car and who is a straight-forward honest person will not mislead people. The point I am mainly concerned about is that this is a step backwards. As matters stand at the moment, under the 1877 Act it is a crime for a private individual in the sale of a car to apply a false trade description to it. We are going a step backwards in doing this. I am prepared to withdraw my amendment in the hope that the Consumer Protection Bill will provide for the points I have raised.

Amendment, by leave, withdrawn.

Question proposed: "That section 4 stand part of the Bill."

Mr. Alexis FitzGerald

I wondered if a description after sale should not be included in the offence to cover the case where, for example, somebody buys a car from a car dealer and has trouble with the steering. He goes back to the car dealer who says there is nothing wrong with that car. He takes it away and it is held on language similar to that which is in this section, but because that description was made after the sale it is not caught by the section. It should be. If the car dealer says there is nothing wrong with the car, when the car is giving trouble after the purchase, he puts himself into a position where it is as bad as if he says it before the sale is made.

I am a little concerned—it is purely a drafting point—about the language used in subsection (3) of this section. It is where section 5 of the Principal Act is being amended. There is a new subsection (1) substituted. It is (1) (a) (II) I am looking at, where a person is deemed to apply a trade description to goods if he places them in, on or with anything to, on or with which the trade description is affixed, annexed, marked or incorporated. That is all right because it is all governed by the word "he". He places the goods in, on or with anything to, on or with which the trade description is affixed, annexed, marked or incorporated. Then, the text goes on to say "or any such thing is placed with the goods". Surely it should have been, "or he places any such thing with the goods" or "any such thing is placed with the goods by him". I leave that to the Parliamentary Secretary for consideration. That is all that can possibly be expected in relation to a point of that kind. It is purely a drafting point.

Another drafting point, again with regard to the amendment of subsection (1) of section 5 of the Principal Act, and it is (1) (b) this time, where a person is deemed to have applied the trade description to which the charge relates if he used the trade description in any manner likely to be taken as referring to the goods.

You may note that as I read that out I omitted certain words which appear in the actual text. The words I omitted are "who is charged with an offence under section 2 of this Act". These words should be deleted because to bring the deeming provision into effect the person would have first to be charged with the offence. That cannot be right. It should be simply "a person shall also be deemed to have applied the trade description to which the charge relates if he used the trade description in any manner likely to be taken as referring to the goods". Then he is caught and he can be charged or not according to the judgment of the administrators of the law. As it stands, the deeming provision would seem to arise only when he is charged with the offence which is odd. I have never seen anything like that in an Act— maybe there is. I am not expecting the Parliamentary Secretary to comment on it but to bear it in mind.

Mr. E. Ryan

It will not take anything from it.

Mr. Alexis FitzGerald

I thought it would have taken something from it. I am a psychiatrist delivering a baby at the moment; I do not specialise in criminal law but it seems to me that it is odd to provide that something is deemed to have happened which is only deemed after the prosecution starts. It might be arguable that this was unfair to the person prosecuted. The statute could deem that certain consequences could follow from certain acts. It may weaken it to have it there and that is my own impression of it. Would the Parliamentary Secretary like to comment on "description after sale", whether she thinks that might be an improving amendment to the section to catch somebody who makes a description after the sale?

Mrs. Geoghegan-Quinn

I do not think that could be accepted as a description. It would be somebody offering a comment after the sale. Any description that would be made would be made and would have to be made at the time of the actual sale.

Mr. Alexis FitzGerald

That is certainly the law as it stands and it is certainly the law in the UK and for that reason it was held that when somebody went away having been assured by the car dealer that there was nothing wrong with the car it was then held that nothing could be done with the car dealer because he was good enough to be quiet when he was selling it. He only said that after the person came back complaining about the steering wheel. Commentators on that said that the judges were forced on the language of the Act to hold what they did but that the law ought to have been otherwise. I am suggesting that we make that bit of law otherwise.

Mr. E. Ryan

Surely one should buy the goods on representations given. There is a contract and at that stage either you have been induced to buy because of representation or you have not. If, afterwards, you come back and say the steering is all wrong and the vendor does not agree, the proper course of action is to bring it to somebody else who will tell you that it is in fact wrong. Then you have a cause for proceeding under the Act.

Mr. Alexis FitzGerald

In these cases the sellers are the people possessed with the expertise and they ought not to be saying of goods they have sold that if there is nothing wrong with them: "I am finished with you".

Question put and agreed to.

Section 5 agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mr. Alexis FitzGerald

This is the services section. We do not have any law with regard to false description or misleading statements to services at this moment so I welcome the extension. But I wonder whether all the people who are engaged in the practice of the different professions have given consideration to the fact that they are now going to be affected by this section. I doubt it very much. That is their business and not particularly ours. There is one important point with regard to this. Other sections of the Bill deal with the sales of goods which are to be provided in the future according to some prior specification.

In the case of services such as a brochure with regard to holidays, under the equivalent language of the United Kingdom code it is said in respect of the consultative document, paragraph 86, that it is almost certain that the Act does not cover the case of holidays where a prior specification of the services, accommodation or facilities to be provided, is set out in the brochure and that what is provided fails to meet that situation, in other words, that the specification of future services is not a false description falling within the Act. I am quoting from the Director General of Fair Trading commenting on similar language where a description of what you are going to give in the way of goods in the future is caught. Even if the statement you make in regard to the future—for instance, the holiday accommodation to be provided—is fraudulent, wreckless and careless it is not caught. It is also suggested by another writer that this is limited to statements and does not cover something that does not amount to a statement such as pictorial representation, for example, which indicates that services of this agreeable nature are available if you visit these premises, because nobody made a statement. The section ought to be expanded to cover indications analagous to the manner in which the section with regard to the sale of goods has been extended to cover indications that do not constitute descriptive statements.

Question put and agreed to.

SECTION 7.

An Cathaoirleach

Amendments Nos. 4, 5, 6 and 7 may be taken together. Numbers 4 and 5 are consequential on Nos. 6 and 7.

Government amendment No. 4:

In page 6, subsection (2) (d), line 30, after "it;" to insert "and".

Mrs. Geoghegan-Quinn

This is just a minor drafting change consequential on the deletion of paragraph (f) of this subsection by amendment No. 6. Amendment No. 5 is also a minor drafting change consequential on the same thing. I do not think there will be any argument with regard to amendment No. 6 because both the amendment in the Government's name and in the Senator's name are similar.

Mr. Alexis FitzGerald

We can have plenty of argument. I am sure Senator Molony would not mind if I find out why both he and the Parliamentary Secretary agree on this matter. I do not see the necessity for the deletion of paragraph (f). It seems proper if you are buying goods of this kind that the section should go on to take them in. I welcome that extension in this section. It is proper that the absence of an indication of the existence of a charge for installing goods or a price of the kind referred to in the advertisement of the goods, services or accommodation, should, unless it is indicated that the offer did not include an offer to install the goods or ancillary equipment, be treated as an indication that the charge does not exist. I should like to hear the Parliamentary Secretary and Senator Molony on this.

Mrs. Geoghegan-Quinn

This amendment is similar to one which was proposed by Deputy O'Toole on Committee Stage in the Dáil. At that time Deputy O'Toole withdrew the amendment after I undertook to consider the matter before the Bill came to the Seanad. In consideration of it I came to realise that fairly often the person who sells, for example, kitchen equipment such as a cooker, very often is not the person who installs it. Very often you need specialised knowledge to install certain things. Maybe you would have the same situation where a person might buy a carpet. It would be at a particular price but that might not include the cost of having the carpet laid. The price to install a certain item is not known when the item is being sold. That depends very much on the particular house or place where a person wants the goods installed. Therefore, it would have been unfair to leave paragraph (f) as it was. The cost of installation might not be known and again it might not be the person who sells the commodity who would in the end install it in the house or place where it was needed. This amendment which deletes that paragraph is necessary and desirable and improves the Bill. Do you agree. Senator?

Mr. Molony

There is a great danger and a very natural tendency when drafting consumer-orientated legislation to attempt to include all types of provisions which seem most desirable. However, one must ensure that provisions in a Bill of this nature are practical. The enforcement of this provision would not be practical, as the Parliamentary Secretary has rightly pointed out, in respect of cookers or the like, but quite wrongly in respect of carpets because everybody knows that anybody who is selling carpets will either lay them or have some association with people who do that work. Particularly in relation to carpets there is a great case to be argued why indication should be given to the installation charge, to use the umbrella expression. I would like to see provision in the Bill to cover this but I do not think it is practical. For that reason I would not like to see a provision in this Bill which would later turn out to be a farce. For that reason I support the amendment.

Mr. E. Ryan

I should like to congratulate Senator FitzGerald on acting as a kind of watchdog to ensure there is no collusion between the Government and the Opposition in the matter.

Mr. Alexis FitzGerald

I merely wanted to know why we were doing something.

Amendment agreed to.

Government amendment No. 5:

In page 6, subsection (2) (e), line 42, to delete "place; and" and to substitute "place".

Amendment agreed to.

Government amendment No. 6:

In page 6, subsection (2), lines 43 to 50, to delete paragraph (f).

Amendment agreed to.

Amendment No. 7 not moved.

Question proposed: "That section 7, as amended, stand part of the Bill."

Mr. Alexis FitzGerald

There are a few points on this. First, the phrase "unless the contrary is expressed" appears five times in this section. It is a section which should very greatly interest people who spend more time in shops than I spend in them. It has been suggested with regard to this whole matter of disclaimers that the general disclaimer should not be adequate. The disclaimer ought to be such that positive information is given in each case. That is the first general point and it is important for the Parliamentary Secretary to consider what I am saying between now and Report Stage as to what is the appropriate attitude to this. There has been a great deal of writing on the subject.

Secondly, I see an improvement here with regard to the prices. It has been suggested that the 28 successive days ought immediately to precede the sale. The third point for consideration is in regard to the recommended price, which is generally a notional one. It is decided on between the manufacturer and the seller. That is what is recommended. It is a device whereby something can be offered as being below what is the recommended price in aid of the sale of the goods that are described as having the recommended price. It has been suggested that this person doing this should be defined as being someone outside the group of companies involved in the business of selling the goods. I will leave that point with the Parliamentary Secretary.

Question put and agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. Molony

Just one small point in relation to section 8 (3):

The Director may, upon giving notice of the application to any person against whom the order the subject of the application is sought, apply to the High Court for, and may, at the discretion of the Court, be granted, an order prohibiting the publication of ...

I am concerned about the notice. What type of notice is it envisaged one would give? I agree fully with the notion behind the section. It is a marvellous development in consumer legislation. In fairness, advertising is a very expensive business and if the director feels that there are advertisements which are offensive and proposes to bring somebody to court, it is only right and proper that very reasonable notice be given to the person who is likely to be brought before the court so that he can have time to prepare his case. As matters stand, an advertiser could receive notice two or three days before going to court. It is conceivable that the notice might be served on the night before the case was due to be heard. I do not think that is fair or proper. It might have very severe financial repercussions for the company to be brought before the court. I would like the Parliamentary Secretary's views on this point. Some provision ought to be included. I have an open mind as to the length of time that ought to be given, but I think it should be ten or 14 days.

Mr. E. Ryan

I wonder whether this is a matter that should be left. After all the subsection specifically says:

may, at the discretion of the Court, be granted an order...

One must assume that the court would act in a reasonable way and if sufficient notice was not given the court would probably say that the notice was not reasonable in the circumstances and refuse to make an order. I think we can rely on the court to issue that order.

Mr. Molony

I would hope that the courts would take that view but I do not think that the matter should be left to the courts. We are making this legislation now. This is a very serious matter which could have very serious consequences. I see no reason why it ought not be included and that a minimum notice of maybe a week or ten days be provided for because the consequences of this could be very serious. I am so convinced of the necessity for such provision that I would be prepared to table an amendment on Report Stage. I would ask the Parliamentary Secretary to reconsider subsection (3).

Mrs. Geoghegan-Quinn

The important difference between this Bill and the Bill as it was introduced is that the power to seek injunctions restraining advertisements is exercisable now only by the Director of Consumer Affairs. Before this it was left to any person and obviously there was a tremendous danger that a rival could in fact seek an injunction. I think it should be left to the Director of Consumer Affairs, who would be, I am sure, a very reasonable person and who would not look for an injunction unless it was absolutely necessary to do so. Therefore, the section could be left as it stands.

Mr. Molony

I do not agree.

Mr. Alexis FitzGerald

Could I strike an unusual note and congratulate the Minister and the Parliamentary Secretary for this particular section? Here we have clearly and decisively broken away from the UK and I think the UK is the only country left now of all the member countries of the EEC without some law of this kind. I think it is the only country that has not introduced any law dealing with misleading advertisements. I welcome this section. Having said that, does the section include, say, actresses advertising soap that they never use or footballers recommending hair clinics or nonsmokers endorsing cigars or actors endorsing cat food when they do not keep cats? Is that all misleading in such a way as to give rise to crime and if so crime on whose part? It is clear that the defence for newspapers with regard to taking advertisements for adverising offences applies to this one also. Is this an absolute prohibition or is mens rea required?

Mrs. Geoghegan-Quinn

It is absolute and the question of the actresses and footballers who advertise items they never use is covered in section 20.

Mr. E. Ryan

It is absolute but the extent of the injury is a matter for argument, in my view.

Mr. Molony

But are they liable to be prosecuted?

Question put and agreed to.

SECTION 9.

Mr. Molony

I move amendment No. 8:

In page 7, lines 21 to 26, to delete subsection (4) and to subsitute the following:

"(4) The Director may be removed from office at any time by resolution of each House of the Oireachtas.".

I think that we are coming to the nub of the Bill when we come to the Director of Consumer Affairs. The creation of the office is an exciting one and one which is novel to this country. There has been considerable discussion as to how the director should be appointed, whom he or she should be. My opinion is that the director should be somebody who is chosen from any profession, trade or job and who does not retain the status of a civil servant on being made director. He ought to be a person who has full and proper back-up services and resources so that he can function properly. The office ought to have a budget of its own so that it could function effectively.

If I were to propose the necessary amendments to give effect to my views on that we would require a new Bill rather than some amendments. I will take the system of appointment as satisfactory. I will take it that it will be left to the Government or certainly to the Department of Industry, Commerce and Energy, to decide what type of resources would be made available to the director. If this director is to have any power at all he must have independence in so far as we can do it in the circumstances that he is a civil servant who will have to depend for his resources on the Department or the Government. We must put him in the strongest possible position.

The provision enabling the Minister to remove the director from office at any time is a farce in the context of section 9 (5) which states:

The Director shall be independent in the performance of his functions.

I believe that I will be forgiven by the House if I suggest that the Parliamentary Secretary is paying lip service to the notion of independence by inserting subsection (5) having already provided that the Minister can remove the director on any sort of whim. I do not want to be taken as suggesting that the present Parliamentary Secretary or any Minister we have had would remove somebody from office without due cause. I feel that in drafting legislation like this we must ensure that the public can look upon the director as being independent, and it is very important that he be independent. As has been pointed out in the Dáil debates, and as anybody in this day and age will be aware, the State is as much in business through its various agencies, Government Departments, as any individual is. It is quite clear that that director, if he is to perform properly, will have to act as watchdog over the activities of Government agencies as much as he acts as a watchdog in relation to the activities of private individuals in business.

I do not believe it is fair either to the consumer or perhaps to competitors of Government agencies in business that a director should be subjected to being removed by a Minister under whose general auspices some service is being provided or some business is being generated. This is fundamental to the entire Bill and I feel that it is not good enough to say that if the Minister removed somebody he shall cause to be laid before the House reasons for his dismissal. In the Dáil debate on this, the Parliamentary Secretary said the amendment would ensure that the Minister could not remove the director from office without reasons acceptable to the Oireachtas. If that were the case, and if the provisions of the section as it now stands represented that, I would accept it, but I cannot see how the Parliamentary Secretary found anything in the section to give foundation for the remark she made.

The simple truth is that the Oireachtas have absolutely no say as matters stand so far as the removal of the director is concerned. What will simply happen if the director is removed is that the Minister will take the step of removing him and subsequently give reasons to the House why he was removed. I do not see why— unless the integrity of the Minister is being questioned—the Minister should bother giving reasons to the Oireachtas. If there was a discussion about it and it was discovered that in fact the Minister was wrong and that the director should not have been removed it would be too late to do anything about it at that stage.

I wonder whether a director who is removed from office without just cause is debarred from claiming under the ordinary protection of employees' legislation because the right was given to the Minister to remove the man without notice or without any investigation. That is something which would only affect the director in his own person. In so far as the general public are concerned they are entitled to see that this person is somebody who is above and beyond the possibility of dismissal without cause. I know that no Minister we have at the moment would dismiss somebody without cause, but it could happen in the future. The legislation is bad for that reason. If the director is to operate in areas in which his Minister is also operating there could be a conflict of interests. If the Minister, perhaps not directly, is announcing to the public that the conduct of his agency is perfectly in order, I cannot see how a director will find it so easy to say that the conduct of that agency is not in order without the feeling of being under some pressure.

I am disappointed that this section was not changed more substantially with the change of Government. The present Minister, when he spoke in the Dáil during the Committee Stage of this Bill under the last Government, was very positive about the role he had in mind for the director. I would have liked to have heard his views on why he changed his mind if he was putting this Bill through the House, but he is not and so we do not have that opportunity. I believe that an explanation is warranted. It may perhaps be said to me that we have had a change of heart on this. I have not spoken to the person who was responsible, the then Parliamentary Secretary to the Minister for Industry and Commerce.

This is a worth-while office we are creating and it is important that if we say the director is to be independent, he should be made independent.

Mr. E. Ryan

Senator Molony underestimates the impediment being placed on the Minister in getting rid of a director of consumer affairs without having very good reasons. The fact that he has to bring it before the Houses and justify it is certainly sufficient to ensure that he will not do it without having not only good reasons but reasons which he is able to articulate and are acceptable to the Houses. In the circumstances a Minister will not lightly dismiss a director of consumer affairs because, first, he is dealing with a very sensitive area, he is dealing with a man who is protecting the public, protecting the consumer, and the public will be watching very carefully any Minister who dismisses a director of consumer affairs who is watching the interests of the public.

From the democratic point of view the Minister will be very slow to dismiss anybody when he has to justify what he is doing. It may well be that the director is not protecting the consumers' interests. It may well be that he is being too slow to step in in these situations, too cautious to such an extent that he is failing to perform his duties. It is only in a situation like that where the Minister feels that the consumer is not being protected and where he feels perfectly justified in bringing the matter before the Houses of the Oireachtas that he will do it. In theory, it may possibly be a stronger situation from the point of view of the Houses of the Oireachtas that the Minister would have to get the approval of the Houses of the Oireachtas. I think that the situation at the moment is perfectly satisfactory as far as dismissal of a director is concerned.

Not only must justice be done but justice must be seen to be done. It must be something that the Minister can stand over and explain why it has been done. The chances are entirely against a Minister coming into the House and saying, "I am dismissing that man because I do not like the colour of his eyes". I certainly cannot see the Parliamentary Secretary coming in giving that excuse. In any of the circumstances it is not the kind of a thing that the Minister would do even if he felt not terribly happy with the director, unless he is able to make a case that is reasonable and has what would be patently a good reason. It is not necessary that the Members of the House should say that they would necessarily do it provided the Minister can make an arguable case, then he should be allowed to do this, and I think the subsection is strong enough as it stands.

Mrs. Hussey

I support this amendment. Senator Ryan has not made a case against it. It is simply not enough to say the Minister would be afraid of public opinion and would not dismiss a director. I do not think public opinion has deterred various Governments before from taking various steps. It all has to do with majorities of votes and the imminence or otherwise of elections. To make a case in both Houses is all very well. To make a case after a person has been dismissed, as Senator Molony pointed out, is one thing; but to have to make that case before the person has been dismissed is another. Consumer affairs is a very sensitive area indeed. As Senator Molony pointed out, so many of the areas might be public areas where there were Ministers themselves involved and a serious conflict could arise. Therefore this director must be absolutely independent and it does make a mockery to have subsection (5) providing that he should be able to act independently. He cannot, I agree with Senator Molony, act independently. I support this amendment.

Mr. Alexis FitzGerald

I also support the amendment. The subsection seems to me to be defective not merely for the good reasons already stated, but there is no obligation even to have a debate on the removal here. There is no necessity to table a resolution confirming it. I would have hoped the resolution should first be passed.

We had a recent example of how things can be put in statutes and people not bothering a damn about it. We established a Law Reform Commission and provided that the Law Reform Commission should make an annual report. Let it be said that the Law Reform Commission seemed to have done not very much since they were established. It was to ensure that they could actually operate in such a way that law reform would take place as a result of what they were doing that it was provided in the Bill that the commission would make an annual report to this House, which they proceeded to ignore and not to do.

There is not even an obligation here to do this within any specified period of time. It is not even stated when the Minister is to make a statement. It is not provided that he is to make a statement to the House: he just lays the statement before each House of the Oireachtas. You then have to be dependent upon the allocation of time for a debate on that statement. Meanwhile months may have passed, great damage done, maybe an election campaign is being fought about the inefficiency of the Director of Consumer Affairs to keep prices down or conduct his job properly. Maybe it is one of the promises. Maybe that is one of the reasons they are removing him—a perfectly good reason for the people who now come in as a result of the promise to remove him; an excellent reason for voting support for them.

Why is this less strong than the provisions, for example, which secure people in RTE, which secure the Director of Public Prosecutions? Why have we it so bald? It is rather significant that the proposal for removing him is contained in the subsection which precedes the declaration of his independence. You would think that declaration should come first. It signifies that it does not, that it suceeds it. You are telling him: "You will go anytime we like. Subject to that, of course, you are independent."

Mrs. Geoghegan-Quinn

The effect of the amendment would be that the Minister, whoever she or he may be, could not remove the director from the post of Director of Consumer Affairs —I might say he would still remain a civil servant—without first tabling a motion and laying it before the Houses of the Oireachtas. This motion could be moved by any Member of the Oireachtas other than the Minister.

The reasons for keeping the section as it is at the moment are, firstly, that the selection and appointment by the Civil Service Commission of the Director of Consumer Affairs ensure that the director, when he or she is appointed, will come from the widest range of candidates, and objectively in the selection of the candidate. If dismissal of the director has to come about then it is for reasons which are firstly known to the Minister. The dismissal may have to be effected urgently. What happens in the case where the Dáil is in recess and it becomes necessary to dismiss the Director of Consumer Affairs? The use of this power by the Minister is restricted, firstly, by the fact that he, as Senator Ryan said, has to give his reasons to the Oireachtas and stand over them and indeed will be questioned, and I would hope questioned severely. The second is that the choice of a replacement for the Director of Consumer Affairs is, of course, out of the Minister's hands because it then goes back again to the Civil Service Commission to advertise and interview candidates again for the position.

If we were to confine the power of dismissal to the Oireachtas, as Senator Molony's amendment suggests, this would be unusual in that it would be unprecedented for an office of this kind, and we have two already that I can think of of this kind in the country.

Mr. Molony

Which two?

Mrs. Geoghegan-Quinn

One is the Controller of Patents and the other is the Examiner of Restrictive Practices. As I said before, no action of this kind could be taken if the Oireachtas happened to be in recess at the time. If this amendment were accepted, then a motion as to why it was necessary to dismiss a director could be laid by the Minister or by any other Member of the Dáil or Seanad before either House of the Oireachtas. It could be debated in both Houses. This was a point I made on Committee Stage in the Dáil when Deputy O'Toole put an amendment similar to this: it could have an extremely bad effect not alone on the character of the director, whoever he or she may be, but it could also result in very considerable stress or depression for his dependants, and his whole character and his whole business could be trashed out publicly in the Dáil or in the Seanad. This would be highly undesirable.

As I said, the Minister's power in relation to this is the same as the power which he has in relation to both of the other offices. The safeguards are there. He must make a report to the House and, as Senator Ryan rightly pointed out, the Minister's own responsibility and his integrity are sufficient and adequate safeguards.

Mr. Molony

I cannot agree with either Senator Ryan or the Parliamentary Secretary. The simple truth is that this man or woman will be in a most peculiar situation. He or she will be attached to, in one way or the other, or come under the auspices of, the Department of Industry, Commerce and Energy. That is quite clear and nobody can dispute that conflicts would arise, that conflicts must arise if the director is doing his job properly, and that being the case I think it takes the director out of the sphere of the two similar officers the Parliamentary Secretary referred to.

Senator Ryan makes the case that the integrity of the Minister would ensure that he will not do anything rash. I am not suggesting that the present Minister would do anything rash. I do not believe it would happen but I do not think that is the way we should draft legislation. Once there is the possibility of a serious conflict of interest, one that might hinder the functioning of the director in his office, then we should take steps to ensure we can put him in a position above that.

The Parliamentary Secretary said a terrible thing could happen, that Members of either House of the Oireachtas could propose that the Director of Consumer Affairs be removed. I do not see anything terrible about that. I think it is a practical and sensible thing. In all Governments on occasions the relevant Minister is frequently not as perceptible to what the consumer is thinking as some TD or Senator might be. I think there is a good case to be argued for Members of either Houses of the Oireachtas having the right to table such a motion.

Senator FitzGerald made the point, and I agree strongly with him, that as the Bill stands there is no obligation on the Minister to come before the House and give reasons, so the question of Members of the House having the right to question the Minister on his reasons does not arise. I presume he could call for some documents to be laid or sent to TDs and Senators and that would satisfy the provisions of this Bill. That is just not good enough.

The only point the Parliamentary Secretary made for which I have some sympathy is distress for dependants. But if the Minister comes into the House I do not see what difference there will be between distress which nobody likes to cause but in some instances is necessary—before removal or after removal.

I must come back to the simple basic point about this. The Director of Consumer Affairs, if he is to function as the Bill envisages, must be independent and this section must be changed in some way or another. I believe that this officer will be in a similar position to the Director of Public Prosecutions. He will have the power to prosecute, which is similar to that of the Director of Public Prosecutions. The Director of Public Prosecutions, because of the part he plays in our legal system, is someone who could come into conflict with Ministers or Departments and for that reason there are provisions in the Prosecution of Offences Act to ensure his independence. I would be prepared to withdraw this amendment if the Parliamentary Secretary was prepared to consider some changes.

For the benefit of Members who are not familiar with the 1974 Prosecution of Offences Act, I should like to point out that in that Act the office of Director of Public Prosecutions was established. The Director of Public Prosecutions is appointed by the Government. On being appointed he takes the status of a civil servant. The Act states that the director shall be independent in the performance of his functions and, in almost every respect except one, the Director of Public Prosecutions seems to be a very similar type animal to the proposed Director of Consumer Affairs, the one difference being that there are separate provisions for the removal of the Director of Public Prosecutions, as there are for the Director of Consumer Affairs.

The provision that exists in the 1974 Act for the removal of the Director of Public Prosecutions provides that if the Government, after consideration of a report of the special committee set up to investigate the performance of the DPP are satisfied, they may remove the director. The initiative must first of all come from some member of the Government who requests the committee to examine the conduct of the Director of Public Prosecutions. As an indication of how seriously the independence of that director is regarded, the committee consists of the Chief Justice, a judge of the High Court nominated by the Chief Justice and the Attorney General. They form a committee who investigate any complaints or investigate the conduct of the director, and they must report to the Government. The Government must consider that report and then decide whether to remove the director.

In this instance there is no provision made for investigation by any other body. There is no provision made even that the Government rather than the Minister concerned should effect the removal, and I am not satisfied with the answers that have been given. I do not propose to let it lie at that: I think it is something that I will bring up again on Report Stage, but I would urge the Parliamentary Secretary to reconsider the stance that she is taking on this matter.

Mr. E. Ryan

On the case the Senator has made—he brought the DPP into this—if there is not provision in the Bill for Members of the Oireachtas to be able to remove the Director of Public Prosecutions, it seems to me ludicrous to give the Oireachtas the power to remove the Director of Consumer Affairs. His argument proves the exact opposite. I appreciate that it can only be done by a very high powered recommendation of a high powered committee, but even in that case where far more serious issues, the liberty of the citizen and so on, are concerned, the Act does not give to the Oireachtas the power to do that. In these circumstances it is inconceivable that we should give the Houses of the Oireachtas the power to remove a Director of Consumer Affairs.

Mr. Molony

I prefaced my remarks before I discussed the status of the DPP by saying that I would withdraw this amendment. What I am looking for is some improvement in the present situation. My amendment was prompted by the fact that the Parliamentary Secretary in the Dáil indicated an interest in having the Members of the Oireachtas discuss this matter. I would have gone along with that. Now the indications from the opposite side of the House are that that is not acceptable. I want an improvement on the present section. I am prepared to withdraw my amendment with the consent of the House but I would ask the Parliamentary Secretary to reconsider the very severe stand she is taking on this. The independence of this director is of fundamental importance and I believe that the provision in subsection (5) is a complete farce considering subsection (4). I would ask that the matter be reconsidered.

Mrs. Geoghegan-Quinn

I will make one point before I reply to the Senator's last point. He made the point, incorrectly, that a conflict could not arise between either the Controller of Patents and the Minister and the Examiner of Restrictive Practices and the Minister. Of course both could find themselves in conflict with ministerial policy. First, the controller could decide to give patent rights to a foreign firm which might inhibit a local Irish firm which the Minister wanted to see developed. That is the first point. The second is that the examiner might for competition reasons disrupt some arrangements between Irish firms which the Minister might like to see developed for reasons of productivity. Nevertheless, at no time has any Minister attempted to interfere or interfered with the discretion of these officers. I am not prepared to reconsider this amendment, or anything along the lines suggested by the Senator. I suggest that if the Senator feels as strongly about it as he says he does he might consider putting it to a vote of the House now.

Amendment, by leave, withdrawn.

Question proposed: "That section 9 stand part of the Bill."

Mr. Molony

I should like to ask the Parliamentary Secretary if she is satisfied that it is wise that we could have, under the provisions of subsection (3), the same Director of Consumer Affairs for perhaps 20 or 25 years. If the person is to function in the way in which a champion of consumers might function, perhaps his life should be limited to ten years or at least that the person, to go on for a further term of five years, should have to go through the original procedure and be considered by Civil Service Commissioners. I accept that it is desirable that the Minister should have one opportunity to reappoint a director. That would give a director a full time in office for ten years. I believe that at the end of the ten years somebody other than the Minister should have the right to reconsider the matter. I do not feel very strongly about it but I think it would be better if the right of the Minister to reappoint were limited to one occasion.

Mrs. Geoghegan-Quinn

The only comment I would make is that, as the Senator has said, the person may be there for 20 or 25 years. The Minister, would decide after a certain period of time it was necessary to have a new Director of Consumer Affairs. I think it is desirable to leave it as it is at present. It is open, in that the appointment is for five years and then for a further five years or for a shorter period.

Mr. Molony

On subsection (6), the functions of the director, the director is given, and rightly so, some very important and extensive powers. I am concerned whether people affected by such orders have a right of appeal. I am particularly concerned with paragraph (b) of subsection (6) which reads:

to carry out examinations of any such practices or proposed practices where the Minister requests him to carry out examinations or where the Director considers that, in the public interest, such examinations are proper,

In relation to this I would like to know who will finance the operation. If the Director of Consumer Affairs decides that he must carry out an extensive examination in some area, there are no budgetary provisions in the Bill. We do not know whether the Minister will be liberal or tight-pursed in his approach to matters of this nature. The director is given the power to carry out examinations. If we are talking about the independence of the director, it is important that he does not have to go crawling to the Minister for Industry, Commerce and Energy and say: "I want £50,000 to do this." If the Minister refuses, can he take it that the director will not be able to function, as provided in paragraph (b)?

Subsection (6) (c) states that one of the functions of the director shall be:

to request persons engaging in or proposing to engage in such practices that are, or are likely to be, misleading to members of the public in a material matter, to discontinue or refrain from such practices,

The following parts of the subsection go on to provide for his rights to go to the High Court in the event of such person not accepting directives. Is there any right of appeal. If I am conducting some practice and I get a directive from the Director of Consumer Affairs which tells me to discontinue that practice, there is no obligation on him to give reasons. I am sure he will have sound reasons if he makes a request of that nature. Before the director has the right to prosecute somebody or to make an application to the High Court, the person to whom the directive has been addressed should have the right to appeal. I do not know whether that appeal should be to the courts or whether it should be to some commission or other, but some provision should be made in that respect.

The same problem arises under various parts of the Act. Where the powers of the director can restrict people in normal business activity, some appeal should be possible before the director would go to court.

Mrs. Geoghegan-Quinn

If the director wants to examine some practices which seem improper and where he feels that, in the public interest, an examination of the particular practice is necessary, of course the director can only do it if he is given the necessary finance by the Minister for Industry, Commerce and Energy, just the same as the Minister for Industry, Commerce and Energy can only spend as much money as he is given by the Minister for Finance of the day.

The second point is that a person should have a right to appeal. If no reasons are given—and there does not need to be a reason—he could then go to the director and find out what the reasons were. If he was not satisfied with those, he could present his reasons in court as to why he should not have been brought up for these particular practices. I would imagine that that would be the situation.

Mr. Molony

It is not good enough to imagine what would happen. I am sure that if we have a reasonable Director of Consumer Affairs he will give reasons. Let us take a company who are engaged in some form of advertising and who have spent hundreds of thousands of pounds in research, preparing their product, advertising and presenting their product on the market. We have a provision here that the director may stop them doing it. He can say "Stop the publication of that advertisement" or he may ask them to change their advertisement in some serious and material way. That company should have the right to obtain reasons from the director. Their only option at the moment is to ignore the director and thereby commit a criminal offence. Even if the director does not have good reasons, the trader involved will be put to the inconvenience and costs of a legal action. It is not good enough. The powers that are given are right and proper and I approve of them, but it must be balanced properly. It is important that where very extensive powers are given to the director he should be obliged to give reasons for making such orders as he is empowered to make under these provisions.

Mrs. Geoghegan-Quinn

Senator Molony was just about to make a very good point as to why the Minister should have the power to sack the director, if that became necessary, because he was about to say "if we had somebody who was an unreasonable director". I felt that was what he was going to say, but perhaps I am presuming too much.

Mr. Molony

I will deal with that if the Parliamentary Secretary likes.

Mrs. Geoghegan-Quinn

He did say that the director would be a reasonable person who would be acceptable. If he were otherwise, I would hope that the power which is being given to the Minister would be exercised. The provisions which are there in subsection (6) (c), (d) and (e), would only be used where it was necessary to do so. If we have a proper Director of Consumer Affairs—which I am sure we will have —the Minister will only take these steps when they are absolutely necessary. When we did not have a director it was up to the consumers themselves. Many of our consumers would not be as articulate as many people here. The well-off people throughout the country would be able to articulate their complaint. Therefore, it is important that the director is given this power and can speak on behalf of the consumer who is not able to get up and talk for himself or herself.

Mr. Alexis FitzGerald

It seems appropriate to use this section to ask a general question with regard to the policy for the enforcement of the Act. What machinery exists? What staff will the director have? How expert will they be? How will they be chosen?

Another section deals with prosecutions by the Minister and at an earlier stage I pointed out that the Minister for Agriculture had power to prosecute too. The power does not seem to have gone from him. There is power to prosecute by officers of local authorities. Who are they? What monitoring will be done by the Director of Consumer Affairs? There is no provision that I see here whereby when prosecutions are brought that he is notified of them. He will not even be able to publish a report every year which would tell us how many prosecutions there have been around the country and for what types of offences and which have been successful and which have not, which sections are dead letters. We are about to get on to a few sections which have existed in British legislation for the last ten years and no orders have been made under any of them, except one order under one of them.

One would like to know what policy is proposed. The Statute Book is full of the most marvellous laws that nobody enforces. I would like to know what procedures, what structures are envisaged with regard to the director. It is important to know whether he will be notified of the prosecutions. Let us take as an example local rates. Will the local authority have to finance the prosecutions which arise from national advertising, television showing of misleading advertisements? Who is going to pay for the prosecutions involved? Surely we should cast the duty on the Director of Consumer Affairs or on the Minister and get that out of public funds at any rate to enforce the misleading advertisement section or anything of that ilk where there is an endeavour to stop a nationwide abuse.

This Bill will be law, presumably, some time in 1978. I presume that section 17 means that the fellow must be a civil servant already. I think that is a neat way of telling us that it is only a civil servant who is going to become Director of Consumer Affairs. I think that is what that means. I do not know whether it does or not, but at any rate at some stage we are going to have a Director of Consumer Affairs. The Minister has charge of the overall Bill. When does he blow the whistle? What happens when he blows the whistle? Who will be listening to the whistle? What is the tune that is to be played on it? Who around the country knows what he is to do and is ready to do it? How alive is this legislation to protect the consumer? This is very relevant from the point of view of the powers of the director, whatever about his independence.

Why is the Minister entitled to retain for one year the director's report which the director is obliged to make under subsection (12)? Why on earth is that not laid before the House straight away for the lot of us to see? We are all waiting down there early in the morning every day at the library to get these reports coming in from all these different bodies and to study them—I do not think. There might be some people interested enough to want to see the report. The director might be very critical of all sorts of things. The Minister might like to sit on it for a year, any Minister, I am not talking about the present Minister. Wherein lies the advantage to the public? This is presumably in the interests of the public. It might be critical of many matters that the Minister might like to take the year to correct while it might be wise for the public to know early on that these matters were that were under criticism from the director.

Mr. Molony

The section is rather longer than I thought. There are two points I want to make reference to in subsections (10) and (11). Subsection (10) provides:

The Director may perform such of his functions as he may deem proper through or by any officer of the Minister duly authorised by the Director in that behalf.

I think it is the case in most powers of delegation given in Bills that the director would authorise such people in writing rather than simply authorise them.

Regarding subsection (11), I wonder what is the purpose of this subsection. Under subsection (3) he is given the right to remove somebody. This section seems to provide that where a director is ill or indisposed for some temporary period the Minister may appoint an alternative director, but nevertheless there is no limitation whatever on the term of office of the director appointed under this subsection and that seems to me to be a defect in the subsection. Presumably the Minister would not appoint an alternative director unless the existing director was sick for at least some three or four months. If the Minister is to make an alternative appointment at that stage, and there may be cause to appoint a temporary director, the tenure in office of the director so appointed should be limited in some fashion.

Mrs. Geoghegan-Quinn

Senator FitzGerald asked who the officers of the director would be or who would work with the director. We have at the moment the example that officers within the Department of Industry, Commerce and Energy are attached to both the controller and the examiner. They report and work only for whichever one they are appointed to work for. They do not take orders from or work for either the Minister or any other senior officials within the Department. This is what it is envisaged will happen once the Director of Consumer Affairs is appointed.

Senator FitzGerald asked why the Minister should sit on the report of the director for one year. It would not be the intention that the Minister should sit on the report for a year. Subsection (12) (a) states:

The Director shall in each year make a report to the Minister in relation to the performance of his functions in the preceding year and the Minister shall, within one year of receipt by him of the report, cause copies of the report to be laid before each House of the Oireachtas.

I would hope, of course, that the report would be made available to the Oireachtas and to the public generally as soon as possible after it had been presented to the Minister but all of us realise that printing delays or copying delays could arise. They do arise in the presentation of different reports at the moment but I am sure that the Opposition would be very vocal in their demands that the report would be laid before the Houses of the Oireachtas as soon as possible.

Senator Molony was worried in case the Minister might appoint a temporary officer to take up the office of director while the director was temporarily unable to discharge his duties. I think Senator Molony's point—and it was a good point—was that the person may be appointed and may stay in the job for a considerable period. This would not be envisaged under the Bill. I think illness would be the main reason why the director would not be able to discharge his duties. After a certain period the Minister could appoint somebody else until the illness was over and the director was better.

Mr. Molony

My point was that some limitation should be put on the length of time for which the director appointed under this subsection could stay in office. Taking it to an extreme, if a director gets sick and he is out of action for six months and the Minister properly decides that he is temporarily unable to perform his functions, the Minister may then appoint somebody to the position of Director of Consumer Affairs and that person could remain there for 20 or 25 years. There is no limitation whatever. The purpose of the section is sensible, obviously, but some limitation should be put on the term of office of a temporarily appointed director.

Mrs. Geoghegan-Quinn

I do not think it would be possible that a person would be there for that length of time. After all, the director can only hold office for five years.

Mr. Molony

Not under this section.

Mrs. Geoghegan-Quinn

The director himself can only hold office for five years. When the original director's five years are up naturally the person who is acting on his behalf must cease to discharge the director's duties. That would be my reading of the section. However, I feel that the Minister would not consider that the person who would discharge the director's duties should be there for any considerable time.

Mr. Molony

Certainly the director who was appointed temporarily would step into the shoes of the director who was ill. At the end of the term of the sick director, so to speak, the temporarily appointed director could be reappointed by the Minister.

Mrs. Geoghegan-Quinn

No, he could not. The term of office of the director who was originally appointed expires at the end of five years. If somebody is temporarily discharging his duties, then his duties end with the duties of the original director under the terms of the Bill.

Mr. Mulcahy

It states, "during such inability", so when the existing properly appointed director goes out, under the section the other person must go.

Mr. Molony

Say a director is committed to a lunatic asylum. Say he is involved in an accident and is paralysed or is in some way rendered permanently disabled. Because he is disabled the Minister appoints an alternative director. I would be happy if I thought that at the end of the term the matter would go back to the Civil Service Commissioners. I do not think it does.

Mr. Alexis FitzGerald

On the last point Senator Molony made, I am referring to the Prosecution of Offences Act, 1974 for some help. I see in that Act that they limited the appointment of the substitute for a term not in excess of 12 months and also they controlled the choice of successor by requiring him to be appointed after consultation with the Minister for the Public Service. Something of that kind might be requisite. Otherwise, the first person is set up and has been tested and examined and found proficient and so on, and then we want a substitute. At the moment anybody can be a substitute, as I read the provision, and it does not seem to be desirable. There should be some structure for limiting the choice of who is to be the temporary person and also a limitation.

Authorisation in writing is very important in subsection (10). How would the director prove himself to be the Director of Consumer Affairs? How does he bind the court to accept some document he signed as being his document? Is he to spend his time wandering between courts 1 to 6 waiting to be called in proceedings? I hardly think it is a desirable expenditure of his time and some procedure ought to be elaborated in this area which will mean that he is not held up by pertinacious solicitors or barristers who are doing their duty by their clients but wasting the time of the Director of Consumer Affairs.

Mrs. Geoghegan-Quinn

On the question of the appointment of a person to discharge the duties of the director, the words used in subsection (11) are if the director is "temporarily unable to discharge his duties". Therefore, if the situation arose, as Senator Molony has said, where a director was committed to a lunatic asylum or if he was in an accident and as a result was unable to discharge his duties, this could be of a permanent nature and therefore the director would, I am sure asked to be relieved of his duties or would be so requested by the Minister. Then a new director would be appointed, going through the same process in the Civil Service Commission again.

On the question of the salary of the director, unless the temporary director was to work for nothing the agreement of the Minister of the Public Service would have to be sought before his salary could be paid. The director, of course, like the Controller of Patents and the Examiner of Restrictive Practices, will hold a warrant of appointment by the Minister.

Question put and agreed to.

Section 10 agreed to.

SECTION 11.

Question proposed: "That section 11 stand part of the Bill."

Mr. Molony

I am a little confused when we get on to these sections because it seems that we have gone through the powers of the director and then subsequently, in section 11, powers are given to the Minister. I wonder whether the powers given to the Minister in section 11 should not, properly speaking, be powers given to the director. Section 11 (1) relates to advertising orders and states:

Where it appears to the Minister to be necessary or expedient in the interest of persons to whom goods, services, accommodation or facilities, of any description are to be supplied or provided that advertisements or any class of advertisements of the goods, services, accommodation or facilities should contain or refer to any information (whether or not amounting to or including a trade description or the name and address of the publisher of an advertisement or his agent or any person procuring the publication of the advertisement or his agent) relating to the goods, services, accommodation or facilities, the Minister may, subject to the provisions of this Act, by order impose requirements as to the inclusion of that information, or of an indication of the means by which it may be obtained, in advertisements, or in such classes of advertisements as may be specified in the order, of the goods, services, accommodation or facilities, of that description.

I feel that this should be a function of the director. I wonder why the power has been given to the Minister.

Mrs. Geoghegan-Quinn

This provision relates to the National Consumer Advisory Council recommendation that the Minister should have power to regulate particular practices. It is put into this section of the Bill. It gives power to require certain types of advertisements to give the identity of the advertiser.

Mr. Molony

Why not give the power to the Director of Consumer Affairs?

Mr. Alexis FitzGerald

That would seem to be a very good idea, not merely with regard to that section but also in relation to section 10 that we have just glided through, to everyone's astonishment, and section 12 which is to follow.

Question put and agreed to.

SECTION 12.

Question proposed: "That section 12 stand part of the Bill."

Mr. Molony

I would like to make the same point in relation to section 12. Again, there are powers given here to the Minister that, properly speaking, I believe, ought to be given to the director. Perhaps the Parliamentary Secretary would tell us the reason why they are not being given to the director so that we might consider the matter before Report Stage.

Mrs. Geoghegan-Quinn

The director does not make any orders himself; he applies the law. Therefore, it is necessary that the powers under this section should be given to the Minister rather than to the Director of Consumer Affairs.

Mr. Molony

He is given the right to request people not to continue with certain advertising. If they do not, they are liable to be prosecuted. I accept that he is not given the power to make orders but I suggest he might be because it seems to be part of the functions of the director as envisaged in section 7, which is the long section outlining the function and status of the office of director, I see no reason why he should not be empowered to make orders.

Mrs. Geoghegan-Quinn

The power to seek an injunction is because there are contravening existing rules but this one adds other laws which they make.

Mr. Molony

Why not give him the power?

Mr. Alexis FitzGerald

That will be the day, when the Minister prosecutes some State body or other. We should face the reality in regard to this. If the only possible enforcement authority is the Director of Consumer Affairs, and he is independent, he should be given it unless we are going to have a situation in which all that sector is free to mis-describe their goods and services as much as they like. He is not the Minister for enforcing this. A Minister for Consumer Affairs, or somebody with that kind of job, should do it. I am not saying the Parliamentary Secretary would not be very good at it. I am merely saying the Minister for Industry, Commerce and Energy is not the person to do it.

Question put and agreed to.

Section 13 agreed to.

SECTION 14.

Question proposed: "That section 14 stand part of the Bill."

Mr. Alexis FitzGerald

I am looking for information here. I believe the point was made along the route which led to this section that this might be unfair to some small traders, that they might not have the ability to comply with the requirement. I am quite unable to make a judgment on this. Has there been any assessment made of this point? To what extent are there people in such a way of business that they would not be able to comply with this? In which case, what we are doing is very serious.

Mrs. Geoghegan-Quinn

If, for instance, small shops or kiosks sell food only as an incidential, perhaps a newsagent's which, sells particular items of food which, in almost all cases the food would be pre-packed, then it is not seen as justified to impose on people such as these the burden of providing a scales.

Mr. Alexis FitzGerald

Is the Parliamentary Secretary satisfied that no small people will be crunched out of business by the operation of this section?

Mrs. Geoghegan-Quinn

The weights and measures people will check pre-packed goods for accuracy of weight.

Question put and agreed to.

SECTION 15.

Question proposed: "That section 15 stand part of the Bill."

Mr. Alexis FitzGerald

I think this was in the very first Bill that was initiated. I think it was in the original section. I do not know where it came from and I do not know if there has been any criticism of it anywhere. It is not parallel with anything in the UK. It seems, whether they asked for it or not, to be something designed to assist the consumer interest. That is reasonably clear because the sidenote indicates that it is a section designed to facilitate people reading retail prices.

It makes it an offence to interfere with or obstruct another person who enters a place where goods are offered for sale for the purpose of reading prices displayed on, with or in relation to the goods or from reading any prices displayed at or near the place. We have talked about competitors using provisions that might be in this Act that might cause trouble for their business. What if the competitor, knowing the busiest moment of the day, chooses that moment to go in?

The section does not require that the person going in should have the intention of buying anything. He does not have to have any authorisation whatsoever. It seems to me that there should be some offence involved in doing this without justification. Any time I go into a shop I want to get out as quickly as I go in. There are obviously busy times in shops and it may be difficult to facilitate people coming to read prices at such busy times. Surely people who do not intend to buy and who merely intend comparing what they see in one shop with what they see in another should pick a time when it is not so busy and causing an obstruction to the business being carried on?

Here we have an offence whereby it is an obstruction to prevent somebody from entering the premises for the purpose of reading prices. We have no offence of obstructing people who are trying to do business in that shop. I am all for consumer protection. That is the spirit of the Bill and I am with it. However, I do not see why we need this when we have in section 16, and I think elsewhere in the Principal Act other provisions regarding entry by authorised officers. Here we have an unauthorised person given a right to come in without any intention of buying.

Could the Parliamentary Secretary give some explanation of the genesis of this, the background to it and what it is designed to facilitate? I presume the mischief it is designed to stop is to get further information to prevent people over-charging. I take it that is what the general objective is. Here it is being given to unauthorised people. I do not mind listed consumer associations or some system whereby they could come in and check out the notices, but not during the busiest hour in the day. I do not know; I am not a shopkeeper and I do not keep shops. I wish I did. I can see that this is open to great abuse if a rival shopkeeper employed a minion to go in at the busiest hour during the day and interrupt business while he reads the prices. I know people can go into a shop and take down the prices, which may take some time. I could do it myself but at least I am an authorised person.

Mrs. Geoghegan-Quinn

The necessity for the section arose because representations were received by my predecessor and myself from consumer interests, particularly consumer associations and others. These stated that sometimes some shopkeepers— examples were given—obstructed certain people from going in and looking at or checking price lists or prices in a particular shop. Any consumer going out shopping is entitled to compare prices in different shops if he or she wants to get the best bargain. It is unusual to find any shopkeeper discouraging a potential purchaser but we were told that this was the case.

The only protection which is in this is that the shopkeeper will have power under this to eject a loafer, an undesirable person, who is coming in just for the fun of coming in or to waste time. The shopkeeper has the right to put all his prices on the lists near the door and the person has no right then to come into the premises because all the prices are freely available there. I think it is desirable to have it there.

Mr. Alexis FitzGerald

Would the Parliamentary Secretary consider putting some provision into it which would make it an offence for a competitor, somebody proven to have an interest in competition, to do this?

Mrs. Geoghegan-Quinn

We have considered that.

Mr. Alexis FitzGerald

I imagine it would be a difficult matter to prove. It would help if you had some provision whereby a rival could not, at least without risking criminal prosecution, start hiring people to make a mess of his competitor's business. It seems to me to be a worrying section.

Question put and agreed to.

SECTION 16.

Mr. Molony

I move amendment No. 9:

In page 11, subsection (3), paragraph (b), lines 7 and 8, to delete "and any person employed in connection therewith".

With all due modesty, I am not very happy with the drafting of my amendment. I am very concerned about the powers given to authorised officers under section 16. I am also concerned about the power given in paragraph (b) of subsection (3) which authorises the authorised officer to:

require any person who carries on such trade, business or activity and any person employed in connection therewith to produce to the officer any books, documents or records relating to such trade, business or activity...

The point that concerns me is not that the principal of any business should be the subject of an inquiry by the director. That is a useful thing. I am concerned that an employee of the principal of a business could be subject to an inquisition from an authorised officer and that an employee who may not be fully conversant with the case or instance or activity that the director is inquiring about should be subject to such inquisition.

As Senator FitzGerald pointed out earlier, professional people who provide a service, including solicitors, for example, come within the scope of this Bill. I do not believe that the Incorporated Law Society have considered the Bill. I do not know if they have made any submissions on it but I am fairly sure that they have not. I can think of a situation that would arise where, for example, a house was sold by a solicitor on behalf of his client. Let us say, for the purpose of argument, that something happened in the sale of the house and an allegation was made that misleading information had been given. It is possible, under the powers given to authorised officers in this paragraph, that the person concerned could go into a solicitor's office and inquire from the typist as to what the position was and demand from that typist in the absence of the principal or any partner of the firm that she produce records, files or financial records and matters that may be privileged. The power goes too far in that respect. The power to inquire from an employee should be removed from the Bill. I have said that I do not believe that my amendment is well drafted because I can see circumstances arising in which a big corporation may come under the eye of the director and I do not suppose it would be practicable that the authorised officer should have to search out the principal of some multinational corporation to make his inquiries. I see a defect in it for that reason.

The power as drafted is too wide and some change ought to be made in it. Because of the limitations of my amendment I will not press it in the form it is in but I would like the Parliamentary Secretary to consider the point that I have made in relation to the instance I gave with regard to a solicitor. It could also happen to a pharmacist or a doctor or somebody who keeps privileged documents or records on his premises.

Mrs. Geoghegan-Quinn

I would disagree with Senator Molony's amendment for this reason: when an inspector calls to inspect books or documents or to obtain any information about entries which have been made in them, he would have to, if we accepted the amendment, approach the person carrying on the trade or business, meaning, of course, the owner. Clearly this would of necessity limit the power of the inspector because if he called to a premises in which there were a lot of people employed, where perhaps the authority was left to a manager on a particular floor, or to another person in charge, it should be open to the inspector to approach this person of responsibility. In many cases in branches or particular depots of large chain stores perhaps the owners may not be even living in the country, they may be outside the jurisdiction. Therefore, it is important that the person who has responsibility is the person who must produce the evidence.

If we accept this amendment we would be leaving it open to owners, proprietors, shareholders or partners to escape from the Bill by being away or becoming inaccessible. That is not inconceivable. It could happen. Therefore, by the time the inspectors would catch up with the person who had the final responsibility with the owner, it would be too late to do anything about it. It is important to keep that provision there. There is a provision identical to this in the Merchandise Marks Act, 1970 and in the Prices Act, 1968. It is important to leave it as it stands.

Mr. Molony

I accept everything the Parliamentary Secretary has said but it does not answer the problem I have raised. This Bill does something extraordinary in that it brings professional people under its scope. I am particularly concerned about doctors and solicitors. I am not suggesting that they ought not to be under its scope. I think they ought to be. That is a sensible and a good thing but some provision should be made to exclude an authorised officer making an inquiry from, say, a typist in a solicitor's office in the absence of a solicitor. Some provision should be made to safeguard—and it is not just safeguarding the interests of the practitioner, medical or legal—the interests of the consumer. Perhaps there is information in a solicitor's file about a client relating to a matter that took place years before the matter in respect of which the authorised officer is making his inquiry. I accept everything the Parliamentary Secretary says but I would ask her to consider making some allowance for the difficulty that I can see arising. I would ask whether the Parliamentary Secretary appreciates that that difficulty can arise? If the Parliamentary Secretary sees that, it should follow that she ought to do something about it.

Mrs. Geoghegan-Quinn

I can appreciate the point the Senator is making but on the other hand I cannot see that when the inspector would call he would be looking for what the Senator calls privileged information. The information he would be looking for would be fairly general information which would be available. I do not think it is envisaged in the Bill that an inspector would be asked to look for privileged information. That type of information would come up again if a prosecution resulted. I appreciate the point the Senator is making but I do not think that the question of privileged information would come under the scope of the inspector.

Mr. Alexis FitzGerald

I wonder if we have given sufficient thought to the application of this to professions generally. Say somebody is alleging that a doctor is giving a false description of the nature of the services he was going to render. I am sure this is not going to happen as a lot of things under this Bill that ought to happen are not going to happen anyway—but apart from that it is still less likely that the other things would happen. The possibilities are there. If some inspector looks for the medical records and medical file of the patient concerned surely there should be some confidentiality involved. Take a solicitor who is alleged to have given a wrong description of the advice he has given. There may be matters on that file that should be completely confidential between him and his client and perhaps confidential to him alone. He might have made a confidential note about a client, for example. In the course of discovering whether the professional person involved has records which will show whether he committed crime under this Act, the file may have more information because it is not sifted down to the matters simply concerned with or arising out of the complaint. It is extended expressly to professions. I should like to think that before this Bill becomes law the professional bodies would consider their position with regard to how they preserve their proper privileges and at the same time how the law should be enforced against erring brethren who are mis-describing themselves.

Recently the Parliamentary Secretary came in and persuaded us to accept a Bill whereby companies can put all their records in computers. What happens if the authorised officer goes in and looks for the books and the records and the gentleman looks happily across the counter at the inspector and says "I have not any; it is all in that computer and I do not happen to have got to the stage of reproducing it in legible form and I do not propose to rush myself in that operation". In that sense is the power adequate to deal with the larger companies that would not be bothered keeping their records around the place but would have them all stuffed away in a computer with the stuff not in legible form? This is not jocous, though people may think it is. It has been suggested that this power ought to be taken by the people who have the duty to enforce this.

I have a few more observations but perhaps the Parliamentary Secretary would like to comment on what I have just said. It is by the way incidentally, even where there is not an application of this thing directly to professions in the UK, where by looking at the comparative section they say that there is nothing to compel the production by a solicitor of a document containing privileged communication made by or to him or to authorise the taking of possession of any such document which is in his possession they considered it necessary to put that in to preserve the privileged nature of the thing but it is not in ours. That is merely in aid of the Parliamentary Secretary's consideration of the point.

Mrs. Geoghegan-Quinn

In the case of the professions we will take the case of the person with a medical record: the complaint would have come from the patient. When we are talking about the officers who would be assigned to the director, it is envisaged under the Bill that in particular cases where specialists are required these would be allocated or got by the director. Therefore I would expect that the only person who could possibly examine the files with a view to giving a correct impression of what had happened or what had not happened, as the case might be, would be another doctor. The same would apply in the case of a solicitor or a barrister: that it would be again the specialist who would look into these files. I do not think that any ordinary officer of the office of the Director of Consumer Affairs would have the legal expertise or the medical expertise to examine these files. Therefore, it would protect the confidentiality with which Senator FitzGerald and Senator Molony are concerned.

Mr. Molony

There are two points on that. The person most likely to have caused the investigation would be the patient in relation to a doctor; but in relation to a solicitor for the sale of a house the most likely person to have caused it is the person who might have purchased the house and who would not be the client of the solicitor concerned. I have no serious objection to a solicitor who knows about the case discussing any matter with an authorised officer, whoever that authorised officer might be. What I have an objection to is an authorised officer coming in and speaking to a typist or somebody who would not appreciate perhaps the confidentiality or even the contents of a file. Many solicitors keep a family file or a file for a client and of the 20 items on that file going back over the past five or six years belonging to the sale of a house the authorised officers comes in to make inquiry and he asks for the documents on this file. If he asked that of a typist the typist might not know exactly or specifically what he is talking about. The same applies in regard to a client's ledger sheet in the office. The client's ledger sheet invariably is not concerned merely with one transaction but with a series of transactions that the solicitor has effected on behalf of that client over a period of time.

I do not want to cause a division on this amendment but I want to put it on record that I have the greatest reservations about it and I think it is something which is wrong and which the Parliamentary Secretary should reconsider.

Amendment, by leave, withdrawn.

Question proposed: "That section 16 stand part of the Bill."

Mr. Alexis FitzGerald

There are a few points I want to mention quickly so that they can be considered between now and the next Stage. Should not the person going in have reasonable cause to suspect that an offence has been committed before he can go into the premises at all? That is the first question. Secondly, say he gets information about a secret process in the course of his search should he not be under obligation to keep that secret process to himself? Thirdly, should it not be an offence for somebody to pretend to be a duly authorised officer who is not? Fourthly, does this leave unchanged section 12 of the Principal Act which provides for searching and seizing goods liable for forfeiture and to the provisions with regard to that matter which are contained in subsection (6) of section 2 of the Principal Act?

At this point I will limit my demand on the Parliamentary Secretary to one specific clarifying answer. There is provision later in the Bill for penalties in view of all other things. There are a lot of provisions in the Principal Act which are not referred to in this Bill at all and which provide for forfeiture. I should like to know with regard to the section on penalties—though the Parliamentary Secretary obviously does not have to answer that one now—but I am interested to know because, if the power of forfeiture is still there, then the power of seizure is still there and then we have to consider the appropriateness of that power in the context of this section. That is the relevance of asking whether there is a power of forfeiture intended to be retained in any circumstances after this Bill has become law. All the rest of the material is on the record for the Parliamentary Secretary to consider and for me to pursue on Report Stage.

Mr. Molony

In relation to section 16 generally, the Parliamentary Secretary did not answer a query that both Senator FitzGerald and I made in relation to section 9. It was a small matter, but in subsection (10) the Director of Consumer Affairs was empowered to sanction through any officer duly authorised, and we suggest that he be authorised in writing to do so. I see here in paragraph (a) of subsection (1) of section 16 that an authorised officer means a whole-time officer of the Minister authorised in writing by the Minister. I would suggest that it is better in the overall to have that included in section 9. In relation to paragraph (b) of subsection (1) an authorised officer shall be a whole-time officer of the council of a county or corporation of a county or other borough authorised and so on. I should like to know whether it is envisaged that local authorities will have some function in relation to the operations of this Bill and I wonder why if this officer is going to be full time, he is not a full-time officer of the director or of the Minister rather than of the council.

Mrs. Geoghegan-Quinn

The council or corporation, if they wish, have a function under this Bill.

Mr. Molony

They can be so, independently. For example, could North Tipperary County Council decide, when this Bill becomes law, to appoint a full-time officer who would operate as an officer of the council but who would have functions under this Bill, or is it not envisaged that the authorised officers should all be under the umbrella of the director?

Mrs. Geoghegan-Quinn

No. He would be independent.

Mr. Molony

Independent of the director?

Mrs. Geoghegan-Quinn

Provided he is appointed as a whole-time officer by a county council or a corporation.

Mr. Molony

I appreciate that but it seems to be out of line in terms of the entire Bill, to provide suddenly in a small paragraph to a subsection at the end of the Bill that local corporations and local authorities have a function under the Bill.

Mr. Alexis FitzGerald

Who will be doing this? You cannot have legislation in a void in relation to policy. You can have policy which is preceding legislation but here we have legislation. Have we a policy to implement it? Who are the persons who are going to implement it? I do not know enough about this. Where are the weights and measures people located? Are they the people who are going to do this? Are they all going to be looking for double salaries? Will there be a multiplication of the number of people employed? How does it all work? Are the consumers to go home with their Consumer Information Bills under their arms and nothing else, or will there be a machine which is going into action to protect the interests of consumers or of one set of traders against another?

Mrs. Geoghegan-Quinn

The weights and measures people are stationed in different places in the country and that, I understand, will continue under the Bill.

Mr. Alexis FitzGerald

And they will perform the functions under this Bill?

Mrs. Geoghegan-Quinn

Yes.

Mr. Jago

Are not the weights and measures inspectors under the Department of Justice?

Mrs. Geoghegan-Quinn

Yes.

Mr. Molony

The idea, apparently, is that these authorised officers would be full-time officers of the council. They could, perhaps, be rate collectors who casually would have a function under this section. Is that correct?

Mr. Alexis FitzGerald

To be explicit about this—quite a number of people who thought about this are a little concerned that qualified people should be performing this function— as to the sense of responsibility involved in the information they are getting and how they should exercise their powers. We should in some way be sure that they are qualified and that they are not a pestering nuisance to traders and no particular benefit to consumers.

Mr. E. Ryan

I would imagine this is just to cover people who are already exercising powers of this kind. I would not imagine, from what the Parliamentary Secretary says, that they are going to get all kinds of new powers under this Bill.

Mr. Molony

I am surprised at the turn this has taken. I thought there was some other thinking behind it. For example, a person who is employed as a rate collector or as a labourer, any whole-time officer of the council can be sent out—it does not say by whom. In relation to the whole-time officer of the Minister——

Mrs. Geoghegan-Quinn

It states "authorised in writing".

Mr. Molony

It does not state how the local council may decide to do it. For example, the Minister presumably and at the request of the director would authorise some people to travel around the country. I am wondering can a county council on the passing of this Bill suddenly decide to appoint any person they choose to work for the council full time and give him this function and have the powers given under the section.

Mr. E. Ryan

If you want to take that to that extreme, the Minister or the director can appoint anybody.

Mr. Molony

Properly so.

Mr. E. Ryan

One must approach this with a certain amount of common sense. It can be either the county council or it can be a whole-time officer of the Minister. In either case, they can send out someone who is totally unsuitable so one must assume that both the Minister and the local authority will send out suitable people.

Mr. Molony

I accept that with one difference and that is that the Minister has a function in consumer affairs, the director certainly has a function in consumer affairs and presumably they would be both extremely knowledgeable on the subject but local authorities may not be and in fact have no other duty under this Bill. The director is obliged under this Bill to keep himself informed about consumer affairs but there is no obligation on councils to keep themselves so informed.

Mrs. Geoghegan-Quinn

I think that the consumers' associations would totally disagree with the arguments put forward by Senator Molony because in fact representations by the consumers' associations to me have been to the contrary. They feel that the local authority have a tremendous part to play in the whole performance of consumer affairs generally and in the functioning of the law as regards consumer affairs. Senator Molony made the point that certain workers—and he named different workers who would work with the council—may be sent out. It is important to see that it is an officer of a county council or corporation. Not all people who work for a council are regarded as officers. That is an important distinction.

Mr. Alexis FitzGerald

Is it significant that water is excluded in the definition of the Bill so that the local authorities cannot be prosecuted for polluting the water?

Mr. Molony

If you are going to give a power like this to full-time officers of county councils is it not right that county councils should be obliged to keep themselves informed on consumer affairs, just as the director is? I see no reason for the director not having the power to appoint a full-time officer of a county council. Then at least there would be some tie-up with the research bank or the up-to-date thinking on consumer affairs, whatever it is to be. This paragraph is an island in the ocean of the Bill. I cannot see the logic of it at all.

Mr. Jago

You have a de facto situation already. Dublin Corporation have already brought prosecutions in this field under some other Act.

Mr. Alexis FitzGerald

Is the provision with regard to forfeiture to go by the board? A lot hangs on it.

Mrs. Geoghegan-Quinn

No. The forfeiture provisions of section 12 of the 1887 Act are not repealed by this Bill.

Mr. Alexis FitzGerald

Therefore, if we want to know the full enforcement powers of everybody, we have to go back to section 12 of the Principal Act also and look at them. Section 12 of the Principal Act—and this must be relevant—provides for arresting the defendants on warrants and informations and so on. Why are we not having all that changed? Why do we not modernise it? Would it be too much to expect?

Mrs. Geoghegan-Quinn

I made the point on Committee Stage in the Dáil what was reasonable to expect, and I would hope that when this Bill has been passed all of the laws which relate to consumer affairs, the Merchandise Marks Act and others, might well be brought under one umbrella. At the moment it is very untidy where we have several Acts to which we must keep referring back, and I think that is what the Senator was advocating.

Mr. Alexis FitzGerald

I do not think so. It would be impossible to produce a consolidation law on all the rights of consumers when one thinks of the vast variety of weights and measures Acts, food and drugs Acts, medicines Acts. It would be an appalling task. That is not an excuse for not tidying up something that we have an opportunity of tidying up on our way. We are talking about ten years' time before a job of that kind could be done. The fact that the Minister and the Department, both present and previous, decided to have two separate Bills—one called the Consumer Information Bill and the other called the Consumer Protection Bill—indicates the nature of the problems involved.

I should like to see this tidied up. When we get to the penalty section it is unfortunate the phrase "in lieu of any other penalty" is used therein. Then I find in the Principal Act, which this Bill is amending, there is to be the penalty of forfeiture also. I find that confusing. The Parliamentary Secretary has answered me on the important point—forfeiture is intended to be maintained.

Question put and agreed to.

SECTION 17.

Government amendment No. 10:

In page 11, subsection (3) (a), line 47, after "section" to insert "of which a person was convicted summarily".

Mrs. Geoghegan-Quinn

This subsection was introduced by way of amendment on Committee Stage in the Dáil to provide, in the only way possible in criminal cases, compensation for persons who may have suffered loss or damage arising from false or misleading trade descriptions. The proposals in that amendment had to be restricted from the more open compensation provisions envisaged earlier because of the danger that such open provisions might be found unconstitutional, as in the case of section 57 of the Road Traffic Act, 1961, and also because of the difficult position of the court in regard to witnesses who might be seeking redress for loss or damage. Legal advice, since received, has stressed that these problems would be particularly difficult if a case of this kind were heard before a jury, and for this reason it becomes essential to ensure that the provision for civil redress in criminal cases can only apply in summary proceedings. The amendment now proposed will have that effect.

Mr. Molony

As I understand it, the fine on summary conviction can be up to £500. Under section 17 (3), the court could make an order for payment to the victim of a sum of up to £500. Is that not outside the jurisdiction of the District Court in a civil matter?

Mrs. Geoghegan-Quinn

We have been given to understand that the jurisdiction of the District Court goes as far as £500.

Mr. Molony

In a matter of contract, I can say with a degree of certainty that in suing for a debt or for damages the jurisdiction of the District Court is limited to £250. I had noted to raise the point generally as to whether the section was constitutional in view of the decision regarding section 57 of the Road Traffic Act.

Am I to understand that the effect of the amendment is to provide that it is only in the District Court an order can be made? If we go into the jurisdiction of the High Court, and if I understand the judgment in the High Court case over section 57 correctly, it was on the question of jurisdiction that the court found the section to be unconstitutional. Say for the sake of argument that the jurisdiction of the District Court was equal to the sum of the fine which the District Court can impose on summary conviction, surely if a matter is dealt with in the High Court the High Court could order that the victim be compensated to any amount within its own jurisdiction? I have not read the judgment in respect of section 57 of the Road Traffic Act, but from my understanding of what I have read in the newspapers, the amendment would not get over the constitutional problem where the court made an order in excess of £250. I imagine that the entire purpose of section 17 (3) could be saved if it were provided that the High Court or Circuit Court could make similar orders within their respective jurisdictions.

Would the Parliamentary Secretary comment on what I said? After all, if I am correct, we are passing something that could be unconstitutional.

Mrs. Geoghegan-Quinn

All I can say is that when this amendment was being considered it was considered because of legal advice given to us by the Attorney General's Office. I am prepared to accept that advice. If Senator Molony feels this is unconstitutional, that is his business.

Mr. Molony

As I understand it, the problem arose on section 57 because the court was empowered to impose a fine in excess of its jurisdiction for civil matters. What the court was doing was compensating somebody who had suffered a civil wrong, namely, damages to a car as a result of a crash. It is worth while clearing the air on this. If somebody crashed into my car and caused £1,000 worth of damage, under section 57 of the Road Traffic Act, where the person who crashed into my car was uninsured, I could apply to the District Court to impose a fine on the defendant up to and including a sum that amounted to the cost of the damage. The objection to that was that where the District Court imposed a fine of £1,000 it was in excess of its jurisdiction. I have not read the judgment so I cannot be dogmatic about this. I am merely making an inquiry which is reasonable in view of the fact that the amendment proposed arises from the judgment.

Mrs. Geoghegan-Quinn

I am not a legal person and therefore I do not think as clearly in legal terms as Senator Molony. However, if advice is given to me by the Attorney General's Office it is accepted when legislation is being drafted. After this Bill had passed all Stages in Dáil Éireann the Attorney General advised that because of the judgment in the case involving section 57 of the Road Traffic Act this amendment should and must be inserted to prevent this Bill from becoming unconstitutional. All I can say is that at the moment the Attorney General's legal advice is the best advice available to me and I am prepared to accept that. The Government amendment is proposed because of legal advice given by the Attorney General.

Mr. Molony

I think that the Parliamentary Secretary is being perfectly reasonable in what she said. I may be quite wrong in what I have suggested but I am just making the inquiry. The Parliamentary Secretary will recall that on Second Stage I complimented her on this section, which in effect was an amendment that she herself had called for in the Dáil. I am sorry that because of a decision in the High Court her efforts to provide what I thought was an excellent remedy for a consumer will be destroyed. It is simply for that reason that I made the inquiry.

Amendment agreed to.

Question proposed: "That section 17, as amended, stand part of the Bill."

Mr. Alexis FitzGerald

What happens about the persistent offender? Senator Ryan, I imagine, will be able to help us about what goes on in relation to these matters. Do we need statutory provision to require the justice or judge or whoever it may be to take account? We might regard £500 as a small penalty, and I suggest previous behaviour relevant to the amount of the fine. Am I not correct in thinking that there are statutory provisions with regard to an increase in the fines in cases of second or subsequent convictions in various statutes which might be appropriate in this statute unless the convictions were arising under the same chain of events that gave rise to a conviction for this type of offence? You might have 1,000 people with a complaint all arising out of the one sort of delivery or one operation which should not be taken into account.

Mr. E. Ryan

Would that not be a matter for the court? Initially it would not be the maximum but if the Senator is talking about a persistent offender, eventually the full penalty will be imposed. Surely that would cover the situation.

Mr. Alexis FitzGerald

I want to know if section 11 of the Principal Act still stands. It provides for the punishment of accessories. I should like to put the package together and see how much of the Principal Act survives.

Mrs. Geoghegan-Quinn

My understanding is that the penalties here supersede all the other penalties in the other Act.

Mr. Alexis FitzGerald

We will have time to consider this between this and the next Stage, particularly having regard to the statement that forfeiture remains.

Question put and agreed to.

SECTION 18.

Question proposed: "That section 18 stand part of the Bill."

Mr. Alexis FitzGerald

We are introducing a new term, "oral statements". Do you think that criminal proceedings should be brought on "oral statements" as long as 12 months after they have been made? Section 15 of the Principal Act provides for three years after committing the offence or one year next after the first discovery, whichever expiration first happens. Which is to be the law? Are we to have a three-year run for offences or a one-year run in the case of the summary matter? It is of some importance particularly if we are dealing with house building, structural problems which may not emerge for a considerable time. On the other side of it, the question of "oral statements" never before applied to these types of criminal offences.

Mrs. Geoghegan-Quinn

If we did not have the provision to enable proceedings to be brought up to 12 months from the date of the offence we would be restricting the provision under the 1851 Act to six months, which is a relatively short period of time. I am not quite clear what the Senator means when he talks about "oral statements".

Mr. Alexis FitzGerald

Oral statements, as you know, are now trade descriptions, and I just wondered whether a prosecution in relation to an oral statement should not be brought more quickly than 12 months. People forget, we forget what we said yesterday, but if you are going to have charges brought——

Mrs. Geoghegan-Quinn

That would probably happen in practice. It is to enable proceedings which could not possibly be taken for various reasons within the six months period which was there previously that we are extending this to 12 months. I think that in practice where an oral statement is concerned as the Senator rightly says, the case would need to be taken far more quickly than that.

Question put and agreed to.

SECTION 19.

Question proposed: "That section 19 stand part of the Bill."

Mr. Alexis FitzGerald

My only suggestion with regard to that is that "neglect" is a very loose sort of word, rendering a person liable for two years jail or a £10,000 fine. I wonder whether it should not be "wilful neglect". The Parliamentary Secretary can consider that between now and our next meeting.

Question put and agreed to.

Section 20 agreed to.

SECTION 21.

Question proposed: "That section 21 stand part of the Bill."

Mr. Molony

Earlier today we had the question of private sales of houses. Is the effect of this section that if, for example, I am an auctioneer and my client gives me instructions that are misleading or would of themselves cause an offence under the Act, that such a person could be charged under the Act? A private person selling his house himself does not come within the scope of the Act. As I read this section it appears that if I employ an auctioneer to sell my house and I give him some misleading information, whether intentional or not, this section exonerates him from liability but it seems to implicate me—the person who gave that information. So people selling their own houses privately would not come within the scope of the Act. Is it the case that somebody who employs an auctioneer to do so might?

Mrs. Geoghegan-Quinn

That would be the case, but in practice I think that would hardly happen. Any auctioneer that I know would be very particular about ensuring that the information which he was given by any client would be correct. Most auctioneers would visit the premises and have the premises valued by their own valuer— in many cases they themselves might be the valuers. Therefore, while what the Senator says is correct, in practice it would hardly happen because the auctioneer would have ensured that the information given was correct.

Mr. Molony

If an auctioneer wanted to keep himself outside the scope of the Act all he would have to do is not visit the premises. It is an extraordinary thing that a person selling his house privately does not come within the scope of the Act but a person who sells his house through an auctioneer and gives misleading information does.

Mr. Alexis FitzGerald

I doubt if I agree with Senator Molony on this.

Mr. Molony

I would be delighted to hear I was wrong.

Mr. Alexis FitzGerald

Section 21 is making somebody liable who would not be liable under the principal section creating the two offences because it is not limited to a person who is carrying on a trade, business or vocation. It seems to capture anybody in business or not for liability. A person is made guilty of an offence if through his act or default somebody else has been involved in an offence with regard to a trade description. Say I have antique furniture and I fiddle with some part of it and I am not in business and I do not therefore come under this Act and I give it to an antique dealer and he sells it on the basis of my act and default with regard to it, he can rely on this section as freedom from the offence and I can be captured although I am not in trade or business at all. This is a root and branch departure from the whole principle of the Act.

Question put and agreed to.

Section 22 agreed to.

SECTION 23.

Question proposed: "That section 23 stand part of the Bill."

Mr. Alexis FitzGerald

We dealt with section 22 with extraordinary speed but I can bear it in mind when commenting on this one. If we did not exclude banks under section 23 we would have to consider the provisions of section 22 which then would apply to them. If we had to do so, it would be proper to observe that section 22 does not apply to services. In regard to the preceding section, which would have applied to banks, the question of disclaimers would have to be considered. If the thing applied to banks, which it does not, the banks would be obliged themselves falsely to describe the services involved. If they did, in such circumstances they would be as unfairly advantaged as any trader in goods who did so. A disclaimer by the defendant who himself made the false description should not be a defence. A general disclaimer could not be relied on in such case. It is not out of order for me to make the point with regard to this section because as I look at the preceding section, which deals with the defences, I note that it does not deal with services which would be a point which should be made at some stage in the Bill as being a deficiency in section 22 which should be looked at by the Parliamentary Secretary. It is capable of remedy by making regulations about disclaimers. The whole question of notice should be further looked at. It is right that banks should be altogether excluded from the provisions of the Act by section 23.

Question put and agreed to.

Section 24 agreed to.

SECTION 25.

Question proposed: "That section 25 stand part of the Bill."

Mr. Alexis FitzGerald

I should like the Parliamentary Secretary to reconcile in due course this section with section 17 of the Principal Act and also with the entirely contrary provisions of section 3 (2) of the Merchandise Marks Act, 1970, which provides in a totally different direction relative to the same theme. I do not ask that that should be done now. Also the section does not apply to services.

Question put and agreed to.

Sections 26 to 28, inclusive, agreed to.

Title agreed to.

Bill reported with amendments.

An Cathaoirleach

When is it proposed to take the next Stage?

Mr. E. Ryan

I would urge that the next stage be taken tonight because there is only tomorrow or next week. Otherwise it will be well into January because the House is probably aware that there are some renovations going on in this wing of the House and we cannot sit until the end of January.

Mr. Alexis FitzGerald

I am very sorry about this but I did not spend the time of the House today without being serious in all I said and without intending that the Minister, the Parliamentary Secretary and their advisers should consider what I said. We have lasted 90 years without changing this Act and we can last another 30 days.

Mr. E. Ryan

A dangerous precedent.

Mr. Alexis FitzGerald

Senator Ryan knows I do not wish to be unhelpful but what would be the point in making all these observations and asking all these questions if I was going to say "yes" to the Bill as it comes here to us. I made a lot of serious points and I am not necessarily in a mood to press any of them if I were satisfied that they had been duly considered. Some of them are important enough that, if the Minister was not convinced of their desirability, I would try and do the drafting myself; but I am perfectly aware that it would not be adequate. At least it would be a draft amendment for consideration. I could not do that before tomorrow or next week. Next week is a particular week anyway.

Mr. E. Ryan

I will have to give the Parliamentary Secretary an opportunity to consider how urgent this is. If we cannot continue and take the next Stage tonight it may be necessary to take it next week. We will just have to adjourn sine die and see how the situation is.

Mr. Alexis FitzGerald

I am bound to say that I would not consider myself as a Senator as having been fairly treated with regard to a measure of this importance—and it is a very important measure—if in effect what I am saying here had not received adequate consideration. It could not have received adequate consideration between now and next week. It would not be possible to do it, having regard to the time of the year and the pressures on Ministers, the civil service and everybody. That is not to suit my convenience.

Mr. E. Ryan

If it was possible to meet early in January, which it normally would be, there would be no difficulty. It is not going to be possible, so it puts the next Stage of this Bill many weeks away. That is why I urge the Members of the House to consider whether it would be possible to take the remaining Stages.

Mr. Molony

In relation to the request that the remaining Stages of this Bill be taken tonight, I do not believe, having spent so long on Committee Stage, that Report Stage could be dealt with properly. We have not broken since 2 o'clock apart from one short break to enable the Parliamentary Secretary to vote. It is a bad way to deal with such a very important Bill.

Mr. E. Ryan

In the circumstances I am not pressing the House to take the next Stage but it may be necessary to meet next week. I suggest we adjourn sine die.

An Cathaoirleach

The next Stage to be taken on the next sitting day.

Mr. Alexis FitzGerald

I am much more concerned about the status of the House with regard to this, doing its duty with regard to legislation, than I am about getting my particular view carried through in any particular amendment. I simply want to be sure that our system has considered points I have thought a lot about in preparation for this debate and then to hear what is said with regard to them. If the Seanad is satisfied that they have been duly considered and should be rejected, that it quite sufficient for me. I am concerned that, purely to convenience a situation, legislation of this importance should not be rushed through. If this was to be the position, I could have done many another type of duty this day and many other days before now.

Mr. E. Ryan

As I understand it, the next Stage will be taken on the next sitting day and we adjourn sine die.

Report Stage ordered for next sitting day.