Amendments Nos. 1 and 2, which are drafting amendments, and amendments Nos. 11 and 12 are all consequential on amendments Nos. 5 and 7 which are similar. Amendments Nos. 1, 2, 5, 7, 11 and 12 are to be discussed together.
Restrictive Practices (Amendment) Bill, 1987: Committee Stage.
SECTION 1.
Government amendment No. 1:
In page 4, subsection (2), line 20, to delete "sections 10 to 20" and substitute "sections 10 to 21".
The Restrictive Practices Act, 1972, and the Mergers, Takeovers and Monopolies Control Act, 1978, contain exemptions in relation to a number of services. It is proposed in the Bill to remove most of these exemptions, as the House knows. This is done by means of the repeal of the relevant provisions under the Second Schedule of the Bill. The parliamentary draftsmen have advised however, that it would be preferable, in view of the importance of the removal of these exemptions which the House is already aware of, to include an appropriate provision in the body of the Bill rather than in the Schedule thereto. Amendments Nos. 5 and 7 give effect to this recommendation. Amendments Nos. 1, 2, 11 and 12 are consequential on amendments Nos. 5 and 7. Therefore, I propose that amendments Nos. 1, 2, 5, 7, 11 and 12 be made to the Bill.
Amendment agreed to.
Government amendment No. 2:
In page 4, subsection (3), line 23, to delete "sections 21 and 22" and substitute "sections 22, 23 and 24".
Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 to 7, inclusive, agreed to.
SECTION 8.
I move amendment No. 3:
In page 6, subsection (1), lines 39 to 42, to delete paragraph (c).
For the record, I had better make it clear that some years ago Senator Robinson and I agreed that in the event of either of us having amendments to a Bill, we would propose them for each other. Having read her speech on Second Stage, I have no difficulty in speaking on this amendment.
Section 8 will give the Minister enormous powers. Senator Robinson's amendment proposes to delete paragraph (c) to "make such provision as the Minister thinks necessary to ensure the equit able treatment of all persons in regard to the supply or distribution of goods or the provision of services". Like Senator Robinson, and agreeing with her, I fully support the objectives and the spirit of the Bill, but like Senator Robinson I think the Minister is at least required to make a good and detailed case for a provision of that breadth and of such limitless extent in order to do something like discourage improper trading practices. At this stage I formally move the amendment that paragraph (c) of subsection (1) of section 8 be deleted.
Any order the Minister makes under this section would have to be confirmed by a decision of the Houses of the Oireachtas. Therefore, the powers being given to the Minister are not limitless. It is very important to put on the record straight away that under section 8 (3) "An order under this section shall not have effect unless it is confirmed by an Act of the Oireachtas but, upon being so confirmed, it shall have the force of law in accordance with its terms". I understand Senator Robinson and Senator Ryan's worry but subsection (3) should cover it.
The effect of Senator Robinson's amendment would be to restrict the Minister's powers in relation to the making of an order under section 8 by removing one of the four matters in respect of which he will make provision in the order. Senator Robinson is, in effect, proposing the removal of section 8 (1) (c). It is envisaged as I said on Second Stage, that this power would be used by the Minister only in extremely urgent cases, in cases where urgency was essential to the public good. Therefore, Senator Robinson and Senator Ryan need not worry too much about it.
Paragraph (c), the provision Senator Robinson regards as being too wide — is already contained in the Restrictive Practices Act, 1972. It is an integral part of the order making process and is essential in order to ensure that the Minister has the necessary powers to put an end to restrictive trade practices. The equivalent provision in the Restrictive Practices Act has been availed of to include a provision in a number of restrictive practices orders to prohibit discrimination between persons in similar circumstances, for instance, discrimination by suppliers or wholesalers against individual retailers. It is important to stress the phrase in subsection (1) (c) which Senator Robinson wishes removed; "equitable treatment of all persons". The Minister is confined to that objective in making any such order and I do not think that is an objective anybody in the House would object to. For example, the Restrictive Practices (Motor Spirit and Motor Vehicle Lubricating Oil) Order, 1981, provides that a wholesaler shall not differentiate between retailers either directly or indirectly, in relation to the terms and conditions subject to which he supplies motor vehicle lubricating oil or light quality grid or quantity whether on a single occasion or on a number of occasions during a specfied period.
It is important to reassure Senator Robinson and Senator Ryan in regard to the powers of the Minister under section 8. As I said, it is not envisaged that there would be frequent use of the powers but it is considered desirable that the Minister should have the powers as the present position is unduly restrictive, rendering speedy action when the need arises virtually impossible. For example, the average time taken at the moment for an inquiry by the Restrictive Practices Commission is between one and two years and, hopefully, the enactment of this Bill will help to increase the efficiency of the operations of the commission. It must also be recognised that an inquiry is, of its very nature, a very slow process involving extensive consultation. It is important, therefore, that the Minister should have power to take swift, effective action in urgent cases. That is what this section is designed to do. I see the worry that both Senators have, but in view of what I am saying to the House there should be some substantial element of reassurance that this section is only to be used in urgent cases and the order which the Minister makes must be confirmed by both Houses of the Oireachtas before it can take effect. I regard that as a safeguard.
On a point of information, take the case of two retailers within a radius of 20 miles of each other to whom a wholesaler has made overtures to sell and then one retailer, who may have a large output of goods, puts pressure on the wholesaler who then stops selling goods to the smaller retailer. Would the Minister be able to stop that practice? I know of one example of that.
I follow the Senator's point. The new Fair Trade Commission could on their own initiative investigate that matter urgently. Whether the particular Minister would regard it as of such urgency as to require his intervention is probably doubtful. It would obviously have to be urgent and of extreme national importance and for the common good. I doubt that a Minister will see that as an example of an urgent case in which he would get involved. It certainly would be an obvious case for the Fair Trade Commission to have a look at, and quickly.
I am not for one second suggesting there are any sinister intents behind the Bill as drafted. However, the Minister will have to accept that the intention of a Minister in introducing a Bill and what subsequently happens can have a great chasm between then, particularly as the years go by. It is true that a similar section is contained in the Principal Act, but in the Principal Act the Minister can only act upon the advice of the Fair Trade Commission. The Minister made the point that section 8 is designed to speed up the making of orders. In the Principal Act the Minister could make orders of the kind referred to in paragraph (c) only after he had a report from the Fair Trade Commission. He has now taken onto himself the capacity to make such orders without any formal report of that nature. Given that there is now no more basis than the information available to the Minister through his own Department and anticipating expedient use of this measure, obviously not by this Minister, and given that orders of this nature are not exactly scrutinised in the detail in which perhaps they should be by either House of the Oireachtas, a section like this legitimately raises some concerns about how it might be used, not in the next month but in the next 20 years. Orders could pass through that Members of the Oireachtas would not even notice. Therefore, there has to be a very specific case for the way these are made. I am not entirely convinced.
As I said earlier, I see very well Senator Ryan's worry. There is always a problem in legislation in spelling out clearly the powers of a Minister. Much legislation has powers given to Ministers regarding which, to an extent, one depends on the subsequent inspection of the Dáil and Seanad. All I can say to the Senator in this case is, first of all, that the Minister must consult with the commission, with the director and with any other Minister concerned. There are three sets of consultations that the Minister must engage in before he or she sets out to make an order. That is the first safeguard.
The second safeguard is that, having made the order, the order does not come into effect unless it is confirmed by an Act of the Oireachtas. I see Senator Ryan's point but if a Minister must consult with the commission, the director and other Ministers under this legislation and then must await confirmation by the Oireachtas of the order which he or she signs, that is a fair check and balance in the system. I do not think the Senator should worry unduly about it, considering those assurances which I have given him here today.
On the point raised by Senator Reynolds, is the Minister saying that a wholesaler will still be at liberty to determine who in a town will sell his products or the products that he is dispatching to retailers? In other words, can he withdraw a product from a certain street, or trader in a street, if he is put under pressure from another retailer in the town? Even with all the legislation proposed in this measure, will a wholesaler still have the power to do that? As it is at the moment, a wholesaler or a producer can determine who in a town will sell his product and it has even happened that a product was withdrawn from a shop or from a retail outlet on pressure from a greater retail outlet that wanted to have the monopoly in that town. Is the Minister saying that that will still be the practice?
In the example given, the general rule would apply, that is, that any aspect of trade must be reasonable and justifiable and in any case where those conditions do not apply the normal procedure would be that an inquiry would be held by the Fair Trade Commission and as a result of that an order made. That would be the normal case. The first step in the example the Senator has given would be for the commission to be of the view that what was going on between retailers and wholesaler was not in some way reasonable or justifiable but if they were found not to be, then an order could be made. That would be the normal procedure. If, on the other hand, under section 8 of this Bill the Minister regarded that particular example as urgent — although as I said earlier I doubt that a Minister would regard that particular example as one of urgency — he would, first of all, have to consult with the commission, the director and other Ministers and having done that could then issue an order if it was to ensure the equitable treatment of all persons; that would have to be the objective. He could then issue the order and that order could not take effect until it was confirmed by an Act of the Oireachtas. That is the position. In the example given, it would depend on the decision by the commission in the first instance, or on the particular Minister whether he or she regarded it as a matter of urgency.
So pressure from a monopoly or a retail trader in a town resulting in the withdrawing of a supply from a smaller trader would be regarded by the Minister as reasonable? It sounds extraordinary that it is again the big fellow crushing the small man.
What I am debating here are the procedures we are setting up to tackle those kinds of difficulties. We are not debating the difficulties, as it were. The procedure is clear that if there is some type of unreasonable and unjustifiable practice going on — like the one the Senator describes, which seems to be an unreasonable and unjustifiable practice — there is no reason why the Fair Trade Commission cannot investigate that and as a result have an order made to stop the particular practice. The practice described, prima facie, seems unreasonable and unjustifiable and as such could be tackled by this procedure.
I regret that I was not in the House to move the amendment and I am grateful to Senator Ryan for moving it on my behalf. I had not appreciated that Committee Stage was being taken at this time but I am aware from Senator Ryan what the Minister has said in response to the amendment.
The purpose of the amendment is to remove from the section what appears to be a very broad provision. I am aware that the Principal Act contained very broad powers of this nature but when we are drafting legislation and empowering Ministers to make provisions we should if at all possible have precision and defined limits on what the Minister's powers are. When I raised this on Second Stage I asked the Minister to seek to put a limit on the powers he would have under section 8 (1) (c). He appeared to be of the view that it was couched in very broad terms. I would like the Minister, in further response on this amendment, to identify specific areas where he would consider it necessary to have these powers. I find it difficult to believe that it is either appropriate or good legislating to grant very broad and open-ended powers of this kind to the Minister. It is very difficult to see what limits can be put on the Minister's consideration of what might be necessary to ensure the equitable treatment of all persons. What does that mean and what are the concrete examples of where it would be required for the purposes of the good orders in relation to restrictive practices?
When I raised this on Second Stage I took into account the fact that orders under the section require to be confirmed by an Act of the Oireachtas but as the Minister is well aware those confirming orders do not get a full parliamentary debate. The Minister will be aware also that when an Act to confirm orders made under restrictive practices legislation are brought before either House of the Oireachtas they generally go through on the nod and without any full debate. Quite often the text of the order is not before Members of the House but of course they can get access to it. In primary legislation and in an amending Act like this we should try to ensure that no unnecessary powers are taken or that powers are not framed in a manner that is unnecessarily wide. I would ask the Minister to illustrate further why he feels it necessary to have such broad powers because I am not happy with the wording of the section as it stands.
I value Senator Robinson's comments. As I explained earlier one of the best examples I could give would be the Restrictive Practices (Motor Spirit and Motor Vehicle Lubricating Oil) Order, 1981. That order provided that: "A wholesaler shall not differentiate between retailers either directly or indirectly in relation to the terms or conditions subject to which he supplies motor vehicle lubricating oil of light quality, grade or quantity whether on a single occasion or on a number of occasions during a specified period to them". That is an example of where a Minister in the future might use section 8 (1) (c).
While I understand Senator Robinson's worry about the apparent width of section 8 (1) (c), the fact that the order has to be placed before the Dáil and Seanad and may be confirmed by the House should be a safeguard. If anything needs revision perhaps it is the way we deal with those orders because if we are putting orders made by Ministers, which is right throughout our legislation, before the House in a routine manner without looking at them properly, a bigger job which has to be done is to find a procedure for investigating and debating those orders. That is the real solution, not undoing the order system which has been put in place to deal with the urgency situations in many cases. That is a safeguard. Both Houses should have a close look at how we deal with those orders when they come to the Houses.
The other safeguard is the one which insists that the Minister has consultation with the commission, the director and any other Minister concerned before making a particular order. That safeguard before he or she makes the order, the order having to go to the Houses after it is made and the example I have given of the type of area in which the Minister might move is adequate safeguard.
Section 8 (1) (c) states: "makes such provision as the Minister thinks necessary to ensure the equitable treatment of all persons in regard to the supply or distribution of goods". This confines the Minister to moving in areas where the objective is to ensure equitable treatment of all persons.
That is not very confining.
The equitable treatment of all persons is a noble objective. An example of that is the Restrictive Practices Commission Report of Review of Restrictive Practices (Groceries) Order, 1981, in which there is the following provision:
A supplier or wholesaler shall not withhold grocery goods from any person or discriminate against any person as to the terms on which such goods are supplied because that person is or is not a member of a trade association or is not approved of by a trade association or because that person's name appears or does not appear on any list prepared, maintained, published or issued by a trade association or because representations that supplies should be withheld from such person or be made available to him only on specified terms have been made by or on behalf of any trade association.
That is an area of equitable treatment of all persons which section 8 (1) (c) seeks to maintain in the legislation. That is a very good example of where it has been used in the past and the question of equitable treatment of all persons comes out in that section. Without section 8 (1) (c) it is possible that that type of action may not be taken rapidly.
I see Senator Robinson's worries but there are enough safeguards there to get around them. The overriding necessity for a Minister to be able to take urgent executive action is what we need considering the amount of time it takes to get one of these inquiries up and running. I should like to reassure the Senator that there are no motives behind this legislation other than those of speed and urgency. The safeguards of prior consultation and of them putting an order to the House would alleviate the difficulty.
I thank the Minister for his explanation and in particular for his reference to the second example. The first example appeared to fall more under section 8 (1) (d) than (c) but the second example given by the Minister does seem to fall more squarely within the requirements to ensure the equitable treatment of all persons. That may be a noble aspiration but it is also a very broad one and that is what concerns me. I agree with the point made by the Minister in reply to the issues raised in this amendment that the Houses of the Oireachtas, in relation to these orders, ought to have more regard to the subject matter of the orders and devise a more effective method of scrutinising and examining them. In my experience that has not happened. Looking back on debates, they do not tend to be ones on which any substantive issues are raised and they go through virtually on the nod. Irrespective of whether there should be a special committee to which orders of this kind can be referred and which builds up an expertise, there needs to be more effective parliamentary control but I thank the Minister for his full recognition and in the circumstances I do not propose to press the amendment.
Getting back to the retailer-wholesaler business, I am a retailer and I was dealing with a wholesaler who decided that he would not supply me with any more goods. I contacted him about this and after some time he decided that he would take my orders, but when I ordered goods he did not have them in stock although they were the most popular goods that I could sell. This wholesaler never had these popular goods in stock; it was a reputable firm and if that was the case, it would have gone into liquidation. This is something that should be examined. As a retailer, I find it difficult to stock these goods and it takes away from my business.
There are a number of orders with regard to the grocery business which deal with a lot of what the Senator is referring to. The extract which I read out for Senator Robinson, for example, is from a Restrictive Practices Grocery Order. There are a number of orders in place already. What we are doing is putting in place the structure which will permit anybody who wishes to complain to the old Restrictive Practice Commission or the new Fair Trade Commission. This body can look at exactly the type of case the Senator is talking about. I hope with this new machinery we can very speedily bring about a situation where an order is made, if the matter is of such urgency or requires the equitable treatment of all persons. The Minister can move quickly on it. There are dozens of examples that members of the House can give in this area. My answer to all of them has to be that the Fair Trade Commission is there to investigate allegations of restrictive practices in areas where there may not be fair play or where there may not be reasonable and justifiable practices operating.
Amendment, by leave, withdrawn.
Government amendment No 4:
In page 7, between lines 3 and 4, to insert the following subsections:
"(4) A person who contravenes (whether by act or omission) any provision of an order under this section for the time being in force shall be guilty of an offence under the Principal Act and the offence shall be deemed for the purposes of section 23 of that Act to be an offence under that Act.
(5) Sections 5, 10, 19, 22 and 24 of the Principal Act shall apply to an order made under this section."
Amendment No. 4 to section 8 deals with orders relating to restrictive practices. Under section 8 of the Restrictive Practices Act, 1972, the Minister, having considered a report of an inquiry by the Restrictive Practices Commission, may make a Restrictive Practices Order. Contravention of any such order is an offence under section 20 of the 1972 Act. It is proposed under section 8 of the Bill to give the Minister power to make an order subject to consultation with the commission, the Director of Consumer Affairs and Fair Trade and any other Minister concerned, without an inquiry first having been carried out by the commission. The Bill does not, however, create an offence for contravention of an order so made and the purpose of the proposed amendment is to create such an offence and to apply the relevant provisions of the 1972 Act to orders made under the Bill. The purpose of this is to create an offence.
I seek clarfication. Under the Bill, the director is being given considerable scope in relation to prosecutions for offences. Is it intended that the Minister would prosecute for this offence or would it come within the scope of the director?
That is a matter for the director.
Surely it is a matter for the legislation?
It would be the director who would prosecute.
It will be the function of the director?
Yes.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."
Since this provides that a contract of employment can be investigated under the Restrictive Practices Act — and that was excluded from the earlier legislation — granted it requires the prior approval of the Minister and the consent of the Minister for Labour, will the Minister explain why it was considered appropriate to now include services in this way under the Bill?
The exclusion on services is being removed. Under section 1 (1) (a) of the Restrictive Practices Act of 1972, any service provided under a contract of employment is excluded from the definition of service for the purposes of the Act, and thus from the scope of the restrictive practices legislation. It is proposed under section 3 of the Second Schedule of the Bill to remove that exclusion and to bring such services within the framework of the 1972 Act. In view of the responsibility of the Minister for Labour in the area of employment, it is considered appropriate that his consent should be sought before any regulatory activity may be undertaken under the Restrictive Practices Act in relation to a service provided under a contract of employment. Section 9 provides therefore that before a service provided under a contract of employment can be the subject of a fair practices rule, an inquiry or an investigation, the Minister must give his written approval and this approval may only be given with the consent of the Minister for Labour. That is a general comment on this section.
That is a technical comment. What is the substance of this? What has the Minister in mind and what areas will be covered by fair practice rules? Why was it considered appropriate? I am not against this, but I would like to better understand the real reasons, apart from the technical explanation the Minister has given.
There is a general policy of excluding any service provided under a contract of employment from the definition of service. There is a general trend and a general policy of making contracts of employment stand on their own outside of this type of legislation. That is a general trend in labour legislation and it is being incorporated into this legislation.
Question put and agreed to.
NEW SECTION.
Government amendment No. 5:
In page 7, before section 10, to insert a new section as follows:
"10.—Section 1 of the Principal Act is hereby amended by the substitution for the definition of ‘service' of the following new definition:
‘service' includes any professional service but does not include any service provided by a local authority within the meaning of section 2 of the Local Government Act, 1941.".
An Leas-Chathaoirleach
This was discussed with amendment No. 1. Is it agreed?
Amendment agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
I am concerned that the Fair Trade Commission would have to receive a complaint either from their own inspector or from a representative trade association before making a rule or a law under the restrictive practices code. In other words, if a trader in a town who is not a member of an association has a complaint, where does he go with it? He is restricted and limited in what he can do about it. The Fair Trade Commission will not listen to an individual and they should listen to an individual.
I should like to reassure the Senator that the Fair Trade Commission will listen to an individual. Section 10 is purely an amendment to section 4 of the Restrictive Practices Act, 1972. Under section 4 (1) of the 1972 Act, the commission are empowered to publish fair trade rules in relation to the supply and distribution of goods or the provision of services. They can do this only on the recommendation of the examiner or at the request of a representative association. The proposed amendment will allow the Fair Trade Commission to publish such rules on their own initiative. That is the purpose of section 10. They can do this on their own initiative as well as under the existing circumstances. The provision is in line with the general plan to strengthen the powers of the commission. We are referring here to the publication of the fair trade rules, not to the power or an individual to deal with the Fair Trade Commission.
I would like to seek clarification on the scope of this amendment. It is quite an important amendment to enable the Fair Trade Commission to make these fair practice rules on their own initiative. I invite the Minister to comment on that, in particular in relation to the provision of services. For example, does this mean that, if the Fair Trade Commission wish to draw up fair practices rules in relation to the provision of legal services, they could draw up such rules on their own initiative?
Yes. The present position is that the Commission have to wait for the director or the Minister before they can move. The purpose of this is to shorten that chain. If we have a Fair Trade Commission they must be allowed to do the job on their own initiative rather than having to wait to hear from the Minister or from the director. It is in line with the general thrust of this Bill which is to strengthen the powers of the commission. It would not make sense not to allow them to act on their own initiative if we are setting out to give them more powers to move more quickly. The thinking behind this legislation is to speed up what is an excruciatingly slow procedure. As I said earlier, it can take up to two years for some investigations to be completed. This is an attempt to speed up the procedure and allow the commission to act on their own initiative. It is in line with the general theme of the Bill that they should be able to act quickly.
I am not quarrelling with the giving of this power to the Fair Trade Commission but it is quite a significant new power to act on their own initiative in this regard. If the Fair Trade Commission, as they can only do at present, are acting on a recommendation of the examiner, that is because the examiner has examined the situation and has so reported. If they are doing so at the request of a representative association, there has been some sort of complaint and the representative association have asked that the commission come forward with these fair practice rules. Could the Minister indicate what the basis would be for the Fair Trade Commission deciding, when they were doing so of their own initiative, to bring in fair practice rules? It is a much broader power that they do not have to wait for the recommendation from the examiner or a request from a representative association.
To look at this in a concrete rather than in an abstract situation, if we look at the provision of legal services, does this mean that the Fair Trade Commission can issue a fair practice rule that the two senior rule in the courts would not apply on their own initiative? What are the limits on the initiative of the Fair Trade Commission under this section?
I refer the Senator to section 4 (2) of the Restrictive Practices Act, 1972, to which I referred earlier:
Before making fair practice rules the Commission shall cause to be published in such manner as they think fit notice of their intention to do so and shall give to any person desiring to make representations in relation to the making of the proposed rules an opportunity to do so, and the notice shall specify the time and manner in which any representations may be made.
I cannot see the commission acting in any peremptory fashion. It is clear from section 4 (2) that they must cause notices to be published and take representations.
Acting on their own initiative is obviously a safeguard and acts as a parameter on how peremptorily the commission may decide to act.
Certainly this is a safeguard in that the commission would have to proceed in that manner. I am more interested to see whether there is any substantive limit to the commission acting on their initiative in this regard. By and large it is an amendment which strengthens the powers of the Fair Trade Commission and that is desirable. There are safeguards of notice and consultation before fair trade rules will be drawn up but at the same time it represents a significant development particularly because it includes not just the supply and distribution of goods but also the provision of services in a broad context.
The main significance of the amendment is to empower the commission to take an initiative. It is that broadening of the powers which is of particular importance. Could the Minister give some indication of what might be the basis on which the commission might seek to exercise that initiative? I would welcome also clarification by the Minister of the status of such fair practice rules, particularly in relation to, for example, the provision of services.
The Senator will be well aware that the fair practice rules are voluntary and are not enforceable. That would be at a later stage where an order may or may not be made. They are a voluntary agreement in a particular practice, profession or trade. Being voluntary and without being able to enforce them at that stage, the safeguard is already there about having to have prior publication and taking representations. I am reasonably satisfied that that will cover it considering this is a voluntary set of rules in any case.
Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
Section 11 is a parallel increase in the power of the commission to act on their own initiative in relation to initiating public inquiries. It would be interesting to obtain some information from the Minister as to the likely exercise of that power. At the moment the commission can only do so when the Minister has so requested, or the Examiner of Restrictive Practices, or any other person has so requested. Does the Minister anticipate that the commission will be likely to exercise their power of acting on their own initiative in relation to inquiries under this section?
The answer is yes. That would be the whole point, that they would act on their own initiative.
More so than they would be likely to be holding inquiries on foot of a request from the Minister. How often has the Minister in the last ten years made such a request?
I will have to get that information on the number of times. The whole purpose of these two sections is to permit them to act on their own initiative and to encourage them to do so. I would express the view that it is likely to be the most regular route from now on. Certainly that would be the intention of the legislation.
Question put and agreed to.
Sections 12 and 13 agreed to.
SECTION 14.
I move amendment No. 6:
In page 8, lines 19 to 36, to delete subsection (4) and substitute the following:
"(4) Any person of whom a requirement has been made under subsection (2) may apply to the High Court for judicial review of the decision of the Commission."
The amendment has been tabled really to see whether it is possible to simplify the procedure envisaged in section 14 (4). I realise that this is an amending section inserting subsections into section 12 of the Principal Act and to some extent the subsections being inserted are caught by the fairly elaborate provisions of section 12. It is a little bit worrying that the commission have been given power to require a person to produce a document and then the person who refuses is being given certain protection, but the protection is so elaborate as to call into question whether we can simplify it. A person may appeal to the High Court for a declaration under the section and under section 14 (4) (c) of the High Court having heard such evidence as may be adduced — so presumably you have got an appeal for a declaration, you have oral evidence possibly and, therefore, an expensive and elaborate High Court hearing and any representations that may be made by the commission. The High Court may at its discretion declare that the exigencies of the common good do not warrant the exercise by the commission of the powers conferred on them. If that is so, it seems to me to be very close to the normal application for judicial review that a body has acted ultra vires and without the requirements necessary for it to act properly. If that were so, it should be possible to allow a person to apply for a judicial review. If that were so, it would not be necessary even to have the amendment which I tabled so that there can be a focus for the discussion of this. A person does not require a statutory provision in order to be able to apply for a judicial review. The purpose of tabling the amendment was to ascertain from the Minister whether it really is necessary to have the rather elaborate provision contained now in the proposed new subsection (4) (c) which is to be inserted in section 12 of the Principal Act.
I am aware that when tangling with Senator Robinson in this regard one is tangling with a very experienced person in this area. I have to say to the House that the procedure we have adopted in the Bill is based on the advice available to us from the Attorney General's office as being the quickest, cleanest method of handling the situation.
Senator Robinson has suggested another route, the route of judicial review of the decision of the commission. One worry I have about Senator Robinson's amendment is the word "decision" itself. I presume that applies to the decision to seek further documentation as opposed to the decision of the commission in the first instance, or a decision on the substantive part of it. If one were to look at that amendment I think that particular word might be inappropriate and might have to be looked at very carefully.
I want to say to Senator Robinson that the primary purpose of subsection (4) which she seeks to alter to a judicial review, is to entitle the person of whom a requirement has been made by the commission to produce documents or to supply information to apply to the High Court for a declaration that the commission's request is unwarranted. Paragraph (c) of the subsection is also designed to give more guidance to the court as to the basis on which a declaration may be granted. Similar powers are already conferred on authorised officers of the examiner by section 15 of the Restrictive Practices Act, 1972. The amendment proposed by the Senator appears to take away a lot of the certainty which is at present contained in section 14 (4) of the Bill. First, we specify there that a declaration is the appropriate remedy as distinct from any other form of judicial review. That is certainly the advice available to Government from the Attorney General.
Second, we make it clear that, even if a person refuses information and may thus be liable to an offence, he or she still has a right to seek a declaration that the action of the commission is not warranted. Finally, we give some guidance to the court in this section as to the basis for any declaration which they may make. That is just a general comment on Senator Robinson's amendment. The provision which already exists in the 1972 Act was contested — as the Senator would know better than I, indeed — in the case of Abbey Films v. Ireland and the Attorney General 1979 and was upheld by the Supreme Court. One could have a long legal debate on which route is better. Obviously I have to rely on the advice available to me.
I reassure the Minister that we will not have a long legal debate. I do not think this amendment warrants that, particularly because of the change made last October in the rules of the superior courts in relation to judicial review. It seems as though this fits within the current rules because part of the relief that can be obtained is by the declaratory action. It is accessible because it is possible to go by way of statement of the claim in effect under the rules and affidavit and then there could be cross-examination on the affidavit. It can come very quickly before the court.
I fully accept that subsection (4) is being inserted here as a protection to a person. It seems to me that the nature of the protection is so elaborate that it may defeat the objective. The classic circumstances of looking for judicial review in a case like this is that a body has acted in a manner that is unwarranted, to use the Minister's words, has acted ultra vires and in a manner that is not warranted by the powers that it has. I will not press the point but it seems to me that, if a person were faced at the moment with the alternative of going under subsection (4) or simply applying for a judicial review, he might well feel that it was both a speedier and more effective remedy to go by way of judicial review.
The section as it is drafted puts us in a position where one does not have to establish one's right to go for a declaration. That right is in the section. I understand that in the judicial review procedure one has to establish one's right, as it were, to pursue a declaration.
One would have to get leave against that.
Yes. Therefore, our advice is that, having established the right in the first instance, this is an easier way. Then, of course, there is the question of not just whether it is warranted but whether it is necessary. It is a stronger defence, I would think.
Amendment, by leave, withdrawn.
Section 14 agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
A point which arises on section 15 also arises more generally on other sections which we will be looking at but I would like to raise it at this stage. I raised it on Second Stage and I would welcome a response from the Minister. There is no doubt that in the amendments which we are making to the restrictive practices code, the role and office of the director assume considerable importance. The director's powers, duties and functions under the Bill are very extensive. I would be concerned that the director would be equipped through proper provision for staffing and the necessary follow through of capability, to discharge the increase in functions which undoubtedly he will obtain under this Bill. Perhaps the Minister will outline the current staffing provisions in the office of the director and whether he envisages those facilities being substantially enlarged in line with the new powers of that office.
The total staff available to the director has increased from nine to 19 now, I understand.
Over what period?
Since 1983, and there is an increased allocation, and I will have that figure for the Senator in a moment. Section 15 amends section 14 of the 1972 Act and incorporates into that section 14 certain provisions of section 16 of the 1972 Act which is being repealed. Section 14 of the 1972 Act provides for the carrying out of investigations by the director either on his own initiative or at the request of the Minister. Under the proposed new subsection (1) of section 15 such a request may also be made to the director by the commission, and the director, as the Senator knows, must comply. Subsection (2) is the same as section 14 of the 1972 Act and provides for the investigation by the director of any aspect of the operation of fair practice rules. Subsection (3) provides that where the director has carried out an investigation at the request of the Minister or the commission, he must furnish a report of the investigation to the Minister or the commission as may be appropriate. The purpose of the subsection is to enable the Minister and the commission to establish certain facts or background information on a particular subject before deciding to exercise their own statutory function.
The purpose of subsection (4) of this section is to make it clear that the director should be free to furnish to the Minister or the commission a copy of a report of any investigation carried out by him whether the request for an investigation came from either source or not. The existing provisions relating to the furnishing of reports by the director are being repealed.
That is a general comment on section 15, considering that we are now discussing it. Referring to the Senator's question in regard to funding of the director's office, the outturn for 1986 was £192,000 and the estimate for 1987 is £321,000. As I said, the staff is up from nine in 1983 to 19 now. Therefore, I am satisfied that the director will have the resources available to him to carry out his duties properly.
It is a staff of 19 now, presumably operating under laws which then existed. But new and extensive functions are being conferred on the director, and what are the staffing allocations? That is the important point.
There are a further six in the examiner's office who will now also be available. They have come on stream in the last year in anticipation of this legislation. Therefore, there will be a further six from the examiner's office, which should help considerably.
Question put and agreed to.
Sections 16 to 19, inclusive, agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."
In the case of an officer who has retired, how far will the secrecy carry with him? Will information that would have been available to him while in office still be subject to secrecy when he retires? Is the Minister satisfied with the provision to prevent the information from being passed on? Many traders are fearful of what might happen if information supplied by them to the commission is made available to others by leakage or otherwise.
The Senator is wise and right to raise that point. It gives me an opportunity to say that the Official Secrets Act would apply in the example the Senator gives. Existing officers and retired officers would be subject to the Official Secrets Act. I am satisfied that secrecy will be maintained because the Act applies.
Question put and agreed to.
NEW SECTION.
Government amendment No. 7:
In page 11, before section 21, to insert a new section as follows:
".—Section 1 of the Act of 1978 is hereby amended by the substitution for the definition of ‘service' of the following new definition:
‘service' includes any professional service, but does not include—
(i) any service provided by the holder of a licence under section 9 of the Central Bank Act, 1971,
(ii) any service provided by a trustee savings bank certified under the Trustee Savings Banks Acts, 1963 to 1965,
(iii) any service provided under a contract of employment,
(iv) any service provided by a local authority within the meaning of section 2 of the Local Government Act, 1941.".
An Leas-Chathaoirleach
I remind the House that this amendment was discussed with amendment No.1. The question is that the new section be there inserted. Is that agreed?
Because I was unaware that Committee Stage was being taken at this time I was not here when amendment No. 1 was moved. This is obviously an important amendment in relation to services. I would be grateful, therefore, if the Minister would respond to one point which I would have made had I been here earlier.
In relation to banking services the Minister will be aware that there was an important order which appears to have lapsed under the Consumer Information Consumer Credit Order, 1987, in relation to requiring banks to provide the annual percentage rate of charge. As I understand it, this order did not come into effect because it was not laid for a sufficient number of sitting days, but I think it has been regarded by many people as an important protection in relation to the supply or provision of credit facilities. Will it be possible under the new amendment which the Minister is proposing to bring banking services, at least in part, under the restrictive practices legislation, to provide for the APC order, or does he intend to reintroduce it? That is a most significant protection for persons who are seeking to avail of credit facilities.
I understand that it would be possible to do that but under a separate provision in the Consumer Information Act.
I have a copy of the draft order which was proposed to be made, and certainly that is made under the Consumer Information Act. It is entitled "Consumer Information Consumer Credit Order, 1987" which did not come into effect because it was not laid before the Houses for a sufficient number of days and would have to be retabled now. The protection afforded by requiring those providing credit facilities to provide an annual percentage rate of charge so that persons would know more fully what rate of charge they were incurring and so that they could compare different rates between different banks — at the moment it is very difficult for a consumer to compare rates — was regarded as a very important form of protection. If the Minister is of the view that it has to be a power exercised under the Consumer Information Act, does he intend to reintroduce that APC order? It would be very much in tandem with extending the powers of the commission into banking services and would be a very important protection.
The position is that the Seanad approved the draft consumer credit order on 18 June and that Dáil approval is awaited. A draft consumer information consumer credit order will require advertisements which show a cost for credit to give the true cost of that credit by means of the annual percentage rate of charge. The Minister for Industry and Commerce informed the Dáil of that matter on 25 June 1987 and pointed out that Dáil approval was awaited for that order. That is the position as I understand it.
It is a very important order and obviously, as the Dáil is in recess, it cannot approve it at the moment. Presumably the order simply requires that it be formally approved by the Dáil or does it have to be laid before it for a certain number of sitting days? I hope the Minister can give an assurance to the House that it will be approved as a matter of urgency when the Dáil is reconvened.
The procedure is that it requires a motion of the Dáil.
Amendment agreed to.
Section 21 agreed to.
Progress reported: Committee to sit again.