Vol. 88 No. 3
This amendment relates to a point raised by Senator Alexis FitzGerald during the course of the Committee Stage of this Bill when he drew attention to the final phrase in (3) (2) (a):
or any such thing is placed with the goods.
The amendment is to improve the the draft.
I thank the Minister for that amendment. It entirely meets the point I made.
It was pointed out by Senator Alexis FitzGerald during the Committee Stage that the opening phrase in (3) (b) might mean that the deeming provision could not take effect until after a person had been charged. The amendment will remove any doubt and ensure that the use of a trade description in any manner likely to be taken as referring to goods can also be taken as applying that description to those goods.
I welcome and accept the amendment.
This amendment is to section 17. The section as drafted would have had the effect of removing the former penalty of forfeiture set up in section 2 (3) of the 1887 Act in addition to fine and imprisonment for cases involving trade description offences, though it would still have remained for other offences under the 1887 Act. The implications of this have been further considered and it is clear that the power to forfeit offending goods is in some cases essential. Even apart from its penal aspect it is sometimes necessary to withdraw goods from commercial circulation. This amendment is proposed, therefore, as it will mean that although the penalties of fine and imprisonment for trade description offences are all now substituted by those now provided; the position with regard to the forfeiture of goods as laid down in the earlier Acts will remain unchanged. Section 2 (3) and section 12 of the 1887 Act provide that a person guilty of an offence shall be liable to forfeit articles, instruments, and so on and the Court may order forfeited articles to be destroyed or otherwise disposed of.
This amendment is agreeable to me. I thank the Minister for that and the other two amendments. That is some recompense to me for having bored the Seanad through a lengthy Committee Stage debate. I am satisfied that the various points which I raised only for consideration have been objectively considered by the Minister. I was not pressing any of them. The main one, relative to the amendment of the Principal Act, to which I gave a great deal of thought, totally daunted me as to how the draftsman could have done it any other way, unless we had a Trademark Bill at the same time, to cope with it. That was the problem.
This amendment will alter the section in such a way that the saver given for contracts is not confined to contracts for the supply of goods but will also cover those for the provision of services. As this measure extends to services for the first time provisions which formerly related only to goods it is appropriate that the saver in this section should also apply to service contracts.
The Seanad cannot take any credit for that amendment. The Minister is entitled to it. That point was not made here. It seems a very valid one.
The section as it stands provides for expenses of the Minister in administering the Act. The intention was that the expenses of the director would be met through the Department, as Ministerial expenses. It is visualised that in practice all the director's expenses will be handled by the Department. This amendment is proposed as a result of representations that the director's independence might be incomplete under the section as it stands. It gives statutory recognition to the director's expenses quite apart from those of the Minister.
Anything that would add to the independence of the director is to be welcomed. It is just a sop, but it is acceptable.
I know it is unusual to speak on the Fifth Stage of any Bill, but I do so because of the importance of the Bill. We are enacting what is a major change in our criminal law. It is very many years since we had a change as widespread as this change in the law. I suggest to the Minister, because of the inherent difficulty with which she was faced in relation to the drafting of the Bill, which makes it a difficult Bill even for lawyers to understand, lawyers in Ireland who in essence have not had an effective trade description code for the last half century, that she should consider publishing a guide to this Bill. I know that there are problems for the executive in presenting what the executive understands any Bill, or Act as it then would be, to mean, but that should not make the Minister hesitate. Everyone in Ireland is a consumer and everyone will be affected by the change in this law. Traders are consumers as well as the final purchasers, and they also will be affected. It is exceedingly difficult to understand the Bill. It would be a very worth-while job for the Minister to employ somebody with skills of the kind that lawyers do not normally have, to make things lucid, to produce a document which would give information to the consumer about what the Consumer Information Bill contains.
I had determined to make this speech earlier today, and I went into my office and I happened to put my hand on a document on my desk entitled, Wildlife and the Law, a guide to the Wildlife Act, 1976, and I found that what I was proposing as something new has already in fact been done in relation to a much less important code than this one. I know this is not quite the Minister's job, but the Minister can talk to other Ministers. In relation to this and other what I call, legal legislation of this kind, whenever, a new code comes in or a fundamental change is made consideration ought to be given at Government level to subsidising some young scholar to produce the Act with a commentary, elucidating it for practitioners. There is not one lawyer in 100 at the moment who knows a thing about trade descriptions law, and these are the people who will have to advise their clients with regard to it. They cannot be expected to understand it by reference to the UK code, which is different in a number of respects. They will need the guidance of study and study will not take place. There is youth unemployment, and it would be a very useful employment of young skills, to get these young people to produce by subsidisation a work of this kind, which, incidentally, would not merely be of use to consumers. If people intend making investments here, they will want to know the law on all sorts of things. There should be some easy way whereby one could tell them what the trade description code here is. They will not be as interested in the wildlife law as they will be in the trade descriptions code. They are assisted at the moment by a guide produced by the IDA on the tax relief for export profits. There should be a similarly lucid document available for them, so that they can obtain fast answers; they do not want to be held up for weeks while somebody down at the law library decides that this means something or other. I strongly urge the Minister to take up my first suggestion, which would be within her competency, and to encourage the promotion of a study on the full meaning of this.
Here we have a new code. On the whole I welcome it. I am unhappy about some aspects of it, such as this business about the history and contents of books. I am unhappy about how that will work or about what is in mind. I am a little unhappy about the invasion of privacy aspect of it, in relation to certain people, the endangering of confidentality, if people enforcing it get information which it really is important to keep secret. On the whole it is a good measure worth enforcing. There is no point in having a Bill unless it is enforced. There must be some scheme or structure for implementation.
What will happen when the President signs this Bill? There will be a director of consumer information and we will have the local authority enforcement officers. Will additional people be taken on? Will there be a method for training them? Is there a booklet of instructions for them ready or when will it be ready? The Bill comes into effect immediately. How quickly will it be enforced? I am pressing, now that we are getting a Bill, that it should not simply be a dead letter. The Merchandise Marks Act which existed before has been a dead letter. The existing code has been a dead letter for 50 years. I could find only one case on it reported, in the 50 or 60 years since this State was founded. We must see that this new code which is bringing up to date an important area of our laws is real, and that there will be an efficient, intelligent, wise and just system of administering it by the executive. There are problems and we want to feel that they are not going to be fooled about what these problems are. You have the sort of problem a doctor has in telling his patient what is wrong with him. He may have to tell the patient the opposite of what is wrong with him. He must not be in any danger of being prosecuted under some section of the Consumer Information Bill even though it does technically apply to such situations. One would like to be sure that the administrators are alert and made sensitive to all the nuances and problems involved in this.
May I express certain reservations that I have as a lay person, not a lawyer, about the tendency that it appears to me is apparent in this legislation, the tendency to blur the distinction between criminal liability and civil liability? I feel that the right to compensation ought not to depend upon a criminal conviction; it should be litigated separately in the civil courts where the rules of evidence are quite different from those obtaining in the criminal courts.
The Minister in introducing this Bill or Second Stage expressed the opinion that it was restricted in that the amount of compensation would be limited by the fines imposed as a result of conviction. If the Bill is to entitle a complainant to compensation surely it should be full compensation and not partial compensation. What happens if the loss suffered is not proportionate to the amount of the fine?
Very briefly, I want to sound a note of regret at opportunities lost in relation to this Bill. The Minister would accept that Ireland lies very far behind our EEC colleagues in our consumer protection legislation and I feel that——
That will be rectified in this Bill.
We lost opportunities to rectify it on this occasion and I believe in taking every opportunity that one can in a matter such as this. I believe that this is so in two particular areas and I would urge the Minister to bear this in mind for the future and when she gets another opportunity to consider it.
I think that Senator FitzGerald put his finger on the problem when he asked what is going to happen now, because, in effect, when this legislation is signed and becomes law nothing may come of it. It now rests with the Minister for Industry, Commerce and Energy to decide what he wants to do about the director. He is under no obligation to appoint a director. He is under no obligation to make sure that director has a budget and, as we pointed out on Committee Stage, the independence of the director is hampered by his status in the Department of Industry, Commerce and Energy.
I would urge the Minister to get the directorship off the ground; to establish the office, to get a director in and to get things moving. But I would urge her to bear in mind for the future the usefulness to the consumer generally of having a director in an agency that is independent of any Government Department. I think that is important. Apart from the conflicts that arise in regard to activities in Government agencies themselves, it is only in the context of a totally independent and enterprising agency that a director can function properly. The only other point I want to make is in relation to section 17 of the Bill. Section 17 is the section that provides for what Senator Cassidy was referring to, the ability of a court when considering the criminal aspect to impose a fine that will serve as compensation for the victim.
Dealing first of all briefly with what Senator Cassidy said, I do not think there is any problem presented by the fact that a judge who is dealing with a criminal matter is going to consider a civil aspect to it. A judge will be conscious of the rules of evidence that should apply and the legislation itself can provide so that nothing unfair is done in relation to any party to the matter. The argument in favour of merging the criminal and civil aspect is that, in an instance such as this where we are creating a crime, whereas formerly the only litigation that could come out of it was civil litigation, it seems pointless that there should be duplication, that there should be, first of all, a criminal prosecution and some time after that a civil prosecution. You are wasting the time of the court and also making inefficient a system that could be much more efficient.
I know that section 57 of the Road Traffic Act ran into difficulties and we discussed this on Committee Stage. The amendment which the Minister introduced on Committee Stage—for Senators who were not aware of it— provided that this system of imposing a compensatory fine on the defendant or on the convicted person can now only be adopted in the District Court. I made the point on that occasion in a general way because I was not sure of what I was saying at the time, that if the matter were proceeding in the High Court or Circuit Court at a criminal level there was no reason why either court should not have an increased jurisdiction and that the right to impose a compensatory fine would be given to the Circuit Court, the High Court and equally the District Court.
I have gone to the trouble since of reading High Court judgments in relation to the constitutionality of section 57 of the Road Traffic Act and it is quite clear from that that the reason why section 57 was found to be unconstitutional was that the amount of compensation that could be awarded by the District Court indicated that the offence could not properly be regarded as a minor offence and therefore was not triable by the district justice. All I am suggesting is that at some stage in the future the Minister might see fit to give the power to the Circuit Court judge where he is dealing with the criminal aspect under this Bill to impose a compensatory fine that is fitting to his court, namely, an unlimited figure. I would ask the Minister to consider this for the future because, as I have already said I complimented the Minister on introducing that amendment in the Dáil and I am sorry that it seems to have got lost on the way through because of what I regard as a misinterpretation of a judgment of the High Court.
I would like to agree with the proposal made by Senator FitzGerald despite the fact that it will probably have the effect of doing some members of the legal profession out of jobs occasionally because if this booklet is brought out as effectively and as clearly as it should be, then many points that are probably somewhat obscure at the moment will be quite clear and it will not be necessary to get any legal advice as to what they really need.
However, I would just like to make one point and that is that this Bill is merely one of a number dealing with much the same field and I think it would be better to wait. There is at least one other Bill which will be dealing with much the same kind of country and it would be as well if such a booklet is going to be produced that it should be comprehensive.
I agree.
While I agree with Senator FitzGerald's suggestion about bringing out a guide to consumer legislation—it is a very good suggestion—I was going to make the point made by Senator Ryan that as we are having two Bills—the Consumer Protection Bill will follow very closely on the heels of this one—it may be better to wait and have the two together. Also one of the director's functions will be to ensure that the provisions of this legislation or indeed any future consumer protection legislation will be made available to the public and will be brought to the attention of the public at all times and continuously over a period of time. As I say, I am well disposed towards the points made by Senator FitzGerald subject to the consideration mentioned by Senator Ryan.
Both Senator Molony and Senator FitzGerald spoke of what is going to happen now. I would hope, and I would like to assure both Senators that my intention now is, that we would get on with the appointment of a director as soon as possible; that the advertisement would go out for applications and that, after going through the list of applicants the appropriate person would be appointed to the job. One of the amendments I brought in today was designed to help the director to have finances so as to be able to get on with the job. As Senator FitzGerald rightly pointed out, unless we start immediately on the right foot with the Bill, the whole area of consumer legislation, which I think Senator Molony rightly pointed out has been neglected to a considerable extent here, would fall apart. We must have a back-up service to any legislation which is introduced. Otherwise that legislation becomes inoperable.
Senator Cassidy made the point about compensation. Of course any of the cases can be litigated separately. As Senator Molony pointed out, the Bill does not take away from the individual the right to seek civil redress. In fact it gives the individual an additional right. This was one of the matters we discussed on Committee Stage and both Senator Cassidy and Senator Moloney made very valid points in regard to it. I assure both of them that it was taken into account between then and now and we felt that the Bill as it was should stand. All legislation must be reviewed from time to time and always be monitored, and this will be the function of the director and, of course, of the Minister in charge also. Therefore I can foresee that as time progresses and as various developments become evident to us in the consumer field, there will possibly be amendments to this Bill from time to time and perhaps to other Bills that will follow. I should like to thank all the Senators who took part in this debate. This legislation is very important and I am delighted that it has been my privilege to take it through to its conclusion. I should like to thank all of you for being very co-operative and to say that at any time when reasonable points are made I will be prepared to consider them sympathetically.
