I move amendment No.47:
In page 14, subsection (2), line 33, to delete "a" and insert "in writing any".
This proposal is made for clarity of text and legal correctness. It is essential in normal practice for the Minister to make such appointments of authorised officers in writing.
Amendment No. 48 in the name of Deputy Quill. Amendments Nos. 55 and 286 are related and it is proposed to discuss amendments Nos. 48, 55 and 286 together. Is that agreed? Agreed.
I move amendment No. 48:
In page 15, subsection (5), line 5, to delete "An" and substitute "Subject to the provisions of section 114* an".
This amendment in Deputy Quill's name is based on her proposal in amendment No. 286 to insert a new section. Amendment No. 286 states:
In page 61, before section 114, (but in Part X), to insert the following new section:
"114.—(1) No information obtained under or by virtue of this Act about any individual shall be disclosed without his consent.
(2) No information obtained under or by virtue of this Act about any business shall be disclosed except, so long as the business continues to be carried on, with the consent of the person for the time being carrying it on.
(3) Subsections (1) and (2) do not apply to any disclosure of information made for the purpose of facilitating the performance of any functions of the Director of Consumer Affairs or the Minister under this Act or in connection with the investigation or prosecution of any criminal offence or for the purpose of any criminal or civil proceedings brought under or by virtue of this Act.".
What Deputy Quill is driving at is the desirability of establishing when and in what circumstances information obtained about an individual under or by virtue of the Act is capable of being put into the public domain. Amendment No. 286 is not merely concerned with the staff of the Director of Consumer Affairs but deals with everybody involved. As I read it, ministerial amendment No. 55 is confined to members of the staff of the Office of the Director of Consumer Affairs. I have no objection to the ministerial amendment.
It is the standard procedure in these kinds of measures that there should be an obligation of confidentiality but it occurs to me that it allows the Director of Consumer Affairs, if he so chooses, to bring into the public domain information about an individual, whereas under Deputy Quill's amendment an individual is entitled to say he does not want the Director of Consumer Affairs to identify him publicly as having borrowed money from an individual. We have to be careful about the interests of individual borrowers because his or her own private affairs should be respected. I do not know if the Minister has thought about the confidentiality obligation of a lender.
Yes, but in another vein.
In the context of the functions of the Director of Consumer Affairs under section 4 (1) (b), will he be spancelled from giving vent to the outcome of investigations he has undertaken where perhaps he has seen some wrong practices? Are there instances where the Director of Consumer Affairs, having conducted an investigation, has a right to publicise the results? Have we struck the balance between protecting the privacy of an individual and giving the Director of Consumer Affairs the right to challenge publicly an unfair or unreasonable practice?
We have to respect the civil rights of people and at the same time we have to acknowledge the wrongs done to people and perhaps the Director of Consumer Affairs sometimes would need to point them out so that there would not be a recurrence and consumers' rights would be protected. For that reason I refer Deputy McDowell to amendment No. 55 in my name whose provisions on confidentiality are broadly similar to those proposed by the Deputy in amendment No. 286. Amendment No. 55 states:
In page 16, before section 8, to insert the following new section:
8.—A person shall not disclose confidential information obtained by him while performing his duties as an authorised officer or as a member of the staff of, or as an adviser or consultant to, the Director unless he is duly authorised by the Director or a member of the staff of the Director (duly authorised in that behalf) to do so.
We are allowing for the point the Deputy made. If there is necessity to disclose pro bono publico it should be done but at the same time taking cognisance of confidentiality. I think my amendment strikes the balance.
I move amendment No. 49:
In page 15, subsection (5) (a), line 12, after "such" to insert "trade,".
This is a textual amendment.
I move amendment No. 50:
In page 15, subsection (5) (b), line 16, before "records" to insert "such".
This is a textual amendment to ensure greater clarity.
I move amendment No. 51:
In page 15, lines 18 to 27, to delete paragraphs (c) and (d) and substitute the following:
"(c) require any person who carries on such trade, business or activity or any person employed therewith to produce to him such records and in the case of such information in a non-legible form to reproduce it in a legible form or to give to him such information as the officer may reasonably require in relation to any entries in such records,
(d) inspect and take copies of or extracts from any such records (including in the case of information in a non-legible form a copy of or extract from such information in a permanent legible form),
(e) remove and retain the said records for such period as may be reasonable for further examination, subject to a warrant being issued for that purpose by the District Court.".
As we are aware, records are now kept on microfilm. The purpose of paragraph (c) is to ensure that authorised officers receive the full co-operation of persons keeping such records, while under paragraphs (d) and (e) these records may be inspected, copied, removed and retained. This amendment will strengthen the powers of an authorised officer given the advances in modern information technology.
I move amendment No. 52:
In page 15, subsection (5) (e), line 29, before "require" to insert "reasonably".
It is proposed to insert the word "reasonably" in order that the tone of the paragraph will be in keeping with the tone of the other paragraphs. Reason must always be uppermost in the minds of authorised officers when carrying out the tasks allotted under this or any other legislation.
I move amendment No. 53:
In page 15, between lines 46 and 47, to insert the following subsections:
"(6) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he has obtained a warrant from the District Court authorising such entry.
(7) Where an authorised officer in the exercise of his powers under this section is prevented from entering any premises that officer or the person by whom he was appointed may apply to the District Court for a warrant authorising such entry.".
It is proposed, arising from the recommendation of the Attorney General, that where the consent of the occupier is not given — this issue was discussed during the course of the debate on the Road Traffic Bill — an authorised officer or the person who appointed him should apply to the court for a warrant authorising him to enter the private dwelling in question. This is a standard provision in legislation.
I can see the reason the Attorney General recommended this change but I am surprised at the bare nature of the change proposed. Normally, where the District Court is given power in a statute to issue a warrant, it is stated that the District Court shall have this power where someone swears that they believe something is the case.
It is barefaced——
There is no indication of how the District Court will deal with the matter. Normally a subsection is included in which it is stated that it shall be lawful for an authorised officer to apply to a judge of the District Court stating, on oath, that it is necessary for the purposes of his functions as an authorised officer to obtain access to a premises. The District Court may issue a warrant to him. I am surprised that there is no basis on which the District Court will decide if it should issue a warrant.
What the Deputy is saying in effect is that it is the authorised officer who will decide.
Normally where a court is given power to issue a warrant it is stipulated in the Act that the authorised officer must tell the court something, on oath, and give some basis on which the court may say yes or no. The Attorney General's office should provide more assistance on this matter by inserting another subsection in which the District Court is given authority to issue the warrant and which outlines what will be necessary before the District Court may issue a warrant.
I understand from our dealings with the Attorney General's office on this amendment that this is a standard provision in legislation.
It is in the sense that the principle is the same but under nearly every Act, including the Misuse of Drugs Act, the district judge is obliged to hear some evidence before he issues a warrant. This is devoid of any procedure.
It is stark.
If the Minister of State was a district judge and an authorised officer came to see her seeking a warrant she would ask if she had the authority to issue the warrant and if she was satisfied that he had reasonable grounds.
It did strike me that it was bare.
The Minister of State should ask the Attorney General what jurisdiction the District Court has to issue a warrant and what criteria should be applied when an application for a warrant is made.
Perhaps we could deal with the matter by inserting an additional subsection. I am in agreement with the Deputy.
I move amendment No. 54:
In page 16, subsection (7), line 2, after "Act" to insert "or give to an authorised officer information which is false or misleading".
This addition strengthens the hand of the authorised officer in the exercise of his duties by making the giving of false or misleading information an offence.
Should the word "knowingly" not be included? Surely someone should know that the information is false or misleading before they commit an offence. Will the Minister of State consider this matter before Report Stage? It is a bit much to hit someone if they did not know it was false information.
I stand to be corrected, but this will only emerge later.
If someone says Michael McDowell is not a customer of a particular firm, that it does not lend him any money, and later it is discovered that he is, people should not be held liable unless they know it was false.
I will have to consider the matter. These two amendments were recommended by the Attorney General and they are concise.
He must have been working in a telegram office.
In relation to subsection (8) which reads "a person shall comply with any request or requirement of an authorised officer under this Act", why did the Attorney General not include the word "reasonable" given that "authorised officer" includes every garda in the country?
I will examine the question of whether the word "reasonable" should be inserted.
I query whether the subsection is constitutional in its present form, that it shall be an offence not to comply with any request.
I move amendment No. 55:
In page 16, before section 8, to insert the following new section:
8.—A person shall not disclose confidential information obtained by him while performing his duties as an authorised officer or as a member of the staff of, or as adviser or consultant to, the Director unless he is duly authorised by the Director or a member of the staff of the Director (duly authorised in that behalf) to do so.".
I move amendment No. 56:
In page 16, before section 8, to insert the following new section:
"8.—The Director may report to the Oireachtas on any matter relating to the operation of this Act, and shall in any event report within three months of the end of the calendar year.".
We discussed the merits of this amendment under amendment No. 39 tabled by Deputy Rabbitte. I propose that the Director of Consumer Affairs should have a relationship with the Dáil similar to that afforded to the Ombudsman so that the Director could report directly to the Oireachtas on matters of concern. Under my amendment, if major defects were found in this legislation or a major crisis in regard to resources, the Director of Consumer Affairs would have the right to report directly to the Oireachtas on the matter. As the position of the Director of Consumer Affairs is similar to that of the Ombudsman they should have similar powers. The power of the Ombudsman to report to the Dáil on matters of concern has been effective; if we afford a similar power to the Director of Consumer Affairs it could also prove effective.
In essence, we discussed this matter under a previous amendment, some of the provisions of which I was able to accept. Deputy Bruton is proposing by-passing the Minister and the Department so that the Director of Consumer Affairs could report directly to this House. The format of the 1978 Act setting up the post of Director of Consumer Affairs has stood the test of time. The fact that reports are made public serves our citizens well, but I will request the Director to include in his report on this Bill a section dealing specifically with the progress of the operation of consumer credit.
I accept the Minister's line of thinking, but, on the other hand, if a third banking force comes into operation and involves a major State credit institution——
The Deputy should not conjure up nightmares.
——it would be necessary for the Director to be able to report directly to the Oireachtas and not be wholly beholden to the Government sponsoring the banking force.
The Deputy is ahead of himself.
There may be some merit in giving the Director the type of power given to the Ombudsman to let him report to the Oireachtas. Will the Minister agree that would be the appropriate way for State companies who are part of the remit to report?
That is a matter for another day. It would be a major step as powers have been conferred on him relatively rcently in legislative terms under the 1978 Act. He is operating satisfactorily albeit with limited resources. I would not support the proposal to bypass an element of his reportage. The Deputy should take up this point regarding the third banking force with the Minister for Finance.
