Consumer Protection (Gift Vouchers) Bill 2018: [Seanad Bill amended by the Dáil] Report and Final Stages

I welcome the Minister of State, Deputy D'Arcy, back to the House. The Bill before us is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 148, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil. This is considered the report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the amendments made by the Dáil to be circulated. The Minister of State will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed groupings. Senators may contribute once on each grouping. I remind Senators that the only matters that may be discussed today are the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

The amendments made by Dáil Éireann involve the replacement in their entirety of sections 2 and 3 of the Bill as passed by Seanad Éireann. Acceptance of the amended sections accordingly entails the deletion of sections 2 and 3. This approach to the amendments was taken on the advice of the Office of the Parliamentary Counsel in view of the number and nature of the changes made to section 2 in particular. All bar one of the amendments are to this section. No amendments have been made to sections 1 or 4. All of the amendments are Government amendments. No amendments were moved by Opposition Members of Dáil Éireann.

The majority of the amendments to section 2 concern the form and not the substance of its provisions. These amendments were made in order to lower the risk of legal challenge to the Bill, clarify aspects of its application, and provide additional protections for purchasers and recipients of gift vouchers. As the Minister for Business, Enterprise and Innovation, Deputy Heather Humphreys, has emphasised, none of the amendments lessen or weaken in any way the protections contained in the Bill as passed by Seanad Éireann. In fact, the amendments significantly strengthen the protections provided for in the Bill.

There are three substantive additions to section 2. The first is the prohibition in section 66B(7) of section 2 of contract terms that place a limit on the number of gift vouchers that can be used in a single transaction. Where such a contract term currently applies, a consumer with two €100 vouchers who plans to buy goods or services for €200 from the business that issued the vouchers would be permitted to use only one of them.

In the view of the Minister, Deputy Humphreys, a contract term of this kind is unjustified and unfair to consumers. The second addition provides in section 66B(8) of section 2 that where a gift voucher contract provides for the replacement of a lost or stolen voucher, the replacement voucher should have the same expiry date as the original voucher. This provision will protect consumers by ensuring that an original and a replacement gift voucher will be subject to a combined expiry period of not less than five years, while clarifying for businesses that a replacement voucher will not be treated as a new voucher for the purpose of the five-year expiry date requirement. The third substantive addition amendment provides in section 66B(10) of section 2 for an exception to the doctrine of privity of contract, which restricts rights and obligations under a contract to the parties to the contract. As gift vouchers of their nature are normally redeemed by their recipients rather than their purchasers, it is necessary to ensure that the recipient of a voucher can exercise the same rights under the contract as its purchaser, including rights deemed to be included in gift voucher contracts by this Bill.

A number of amendments have been made in response to legal advice that certain provisions of the Bill, as initiated, were at risk of legal challenge on the ground of incompatibility with the maximum harmonisation nature of the unfair commercial practices directive. The request for this advice was made after the Bill's passage through Seanad Éireann and was prompted by a case referred to the EFTA court. The legal advice recommended that in order to minimise the risk of legal challenge, provisions originally framed in terms of commercial practices by traders should be redrafted to refer instead to terms in gift voucher contracts. This has been done in section 66B(1), and subsections (4), (6) and (8) of section 2 of the Bill.

The majority of the other amendments to section 2 of the Bill are technical in nature. The definition of "gift voucher" in section 66A(1) of section 2 has been amended to exclude a number of products such as pre-paid telephone and Internet cards, gas and electricity cards, diesel and petrol cards, cheques and postal orders that share some characteristics with gift vouchers and might accordingly be held to come within the definition of that term but to which the protections of the Bill are unnecessary or would be inappropriate. Electronic money gift vouchers are also excluded from the scope of the Bill in response to legal advice from the Attorney General that their inclusion risked incompatibility with the maximum harmonisation nature of the electronic money directive and conflict with the separate regulatory regime for electronic money. The counterparty to the trader who supplies a gift voucher under a gift voucher contract is now referred to as a "person" rather than, as in the Bill as passed by Seanad Éireann, a "consumer", in recognition of the fact that many businesses purchase vouchers to give to their employees and that these employees would not be regarded as "consumers" under the definition of that term in consumer legislation.

Other technical amendments seek to clarify aspects of the application of the provisions to which they relate in order to avoid legal uncertainty and unintended consequences. The provision at section 66B(5) of the Bill as passed by Seanad Éireann, for example, could be interpreted as imposing a requirement on traders to reimburse the remaining balance on a gift voucher by means of cash or another gift voucher in all cases where a consumer redeemed only a portion of the value of a gift voucher and the remaining balance on the voucher was more than €1. There is no need for such a requirement, however, for gift vouchers that can be used multiple times as long as a balance remains on the voucher, and it was not the intention to impose a reimbursement requirement in such cases. Section 66B4(a)(ii) of the Bill, as amended, clarifies accordingly that the reimbursement requirement applies only where the gift voucher contract contains a term preventing the remaining balance of the gift voucher from being redeemed in another transaction.

As there are no Members indicating that they want to speak to-----

Very briefly, I welcome what the Minister of State has put forward. It is-----

We are just dealing with the amendments in group 1.

That is fine. I will come back in again.

I will move on to group 2. I ask the Minister of State to speak to the subject matter of the amendments in group 2.

While the amendment of section 3 made by Dáil Éireann involves the replacement of the existing section in its entirety, sections 3(a) and (c) are similar to the corresponding provisions in the Bill passed by this House. Section 3(b) is new and will provide that contraventions of the requirement to provide information on the expiry date or period of a gift voucher will come within the scope of section 85 of the Consumer Protection Act 2007 on fixed payment notices. Contraventions of other information requirements in that Act and of information requirements in other consumer protection legislation can be the subject of fixed payment notices, and it is appropriate that contraventions of information provisions in the Bill can be dealt with in a similar way. It will be for the Competition and Consumer Protection Commission to decide in the circumstances of a particular contravention whether a fixed payment notice is appropriate or whether the contravention should instead be dealt with by means of summary proceedings.

Question put and agreed to.
Question proposed: "That the Bill do now pass."

I welcome the clarification and the changes to the redeemability of gift vouchers, and that the same conditions will be given to the recipient and the purchaser. The Minister of State made clear the need for replacement vouchers. Gift vouchers should never have an expiry date and should last forever. I welcome the Minister of State's changes and congratulate him and the Department on the Bill's passage. It is important legislation that will give equal protection to the recipient and the purchaser and is about ensuring we make it easier for people to use gift vouchers and gift cards.

I am delighted to welcome the Minister of State back to the House. As he will know, we spent some time debating the matter previously. We welcome the amendments, which seem straightforward and logical.

It would be remiss of me not to mention the significant birthday of our Acting Chairman today. I am sure he will treat us all to wine and cake in the bar later. I congratulate him.

I join the Senator in wishing the Acting Chairman a happy birthday and look forward to sharing with him the wine and cake the Senator mentioned.

Senators are all very welcome. We will see them later.

I thank the Minister of State.

Question put and agreed to.
Sitting suspended at 5 p.m. and resumed at 5.15 p.m.