Dáil Éireann - Volume 303 - 15 February, 1978

Consumer Information Bill, 1976: (From the Seanad).

The Dáil went into Committee to consider amendments from the Seanad.

Minister of State at the Department of Industry, Commerce and Energy (Mrs. Geoghegan-Quinn): I move that the Committee agree with the Seanad in amendment No. 1:

Section 2: In page 3, subsection (1), lines 31 and 32, paragraph (k) deleted and the following paragraph substituted:

“(k) as to the contents of books or as to their authors, as to the contents of cinematograph films (within the meaning of the performers' Protection Act, 1968) or as to their producers or as to the contents of recordings (within the meaning of the Performers' Protection Act, 1968) or as to the performers on such recordings, or”.

This amendment is designed to improve the effectiveness of the provision by widening its scope to cover recordings and performers.

Mr. O'Toole: I agree with the amendment because it widens the scope of the subsection, but I wonder if the existing paragraph in section 2 which we are now deleting did not cover what is being covered in the amendment. For instance, was it necessary to specify the Performers' Protection Act, 1968?

Mrs. Geoghegan-Quinn: We had a lot of representations during the passing of the Bill through the Dáil and later when it came to Committee in the Seanad. It was alleged that faults or misleading descriptions arise regarding the identity of performers on sound recordings and it would not have been embraced by the original subsection.

Question put and agreed to.

[1259] Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 2:

Section 4: In page 4, subsection (3), lines 37 and 38, “any such thing is placed” deleted and “places any such thing” substituted.

This amendment relates to a drafting point which was raised in the Seanad. It concerned the final phrase in paragraph (a) (ii) of subsection (3). The original phrase was “he places”. The amendment would substitute “any such thing is placed”. It was purely to improve the drafting.

Mr. O'Toole: I should have congratulated the Minister on her appointment. Would she tell me what is the difference, from a grammatical or interpretation or drafting point of view, between “any such thing is placed” and “places any such thing”?

Mrs. Geoghegan-Quinn: During the Seanad Committee Stage Senator Alexis FitzGerald pointed out that there is a difference. At the time I did not see the difference but on looking at it again before Report Stage we decided there is a difference and there-fore we made the amendment.

Question put and agreed to.

Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 3:

In page 4, subsection (3), lines 39 to 42 deleted and the following substituted:

“(b) A person shall also be deemed to have applied a trade description to goods if he uses the trade description in any manner”.

This amendment of section 4 (3) substitutes a phrase for “A person who is charged with an offence under section 2 of this Act”. The original phrase might mean that the “deeming” provision could not take effect until after a person had been charged. The amendment removes any doubt. It ensures that the use of a trade description [1260] in any manner likely to be taken as referring to goods can always be taken as applying that description to such goods.

Mr. O'Toole: I agree with the amendment, it simplifies the whole section.

Question put and agreed to.

An Ceann Comhairle: Amendments Nos. 4 and 5 are related to amendment No. 6 and the three amendments may be taken together.

Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 4:

Section 7: In page 6, subsection (2) (d), line 30, “and” inserted after “it;”.

Amendment No. 6 is similar to that formerly proposed but later withdrawn when I agreed to have a look at it between then and Committee Stage in the Seanad. Amendments Nos. 4 and 5 are drafting changes necessary because of accepting amendment No. 6.

Mr. O'Toole: The insertion of the word “and” after “it.” in amendment No. 4 worries me. While I appreciate that the deletion of (f) will result in (e) being the last paragraph in section 7 (2) there is a danger of misinterpretation with the insertion of “and”. Paragraph (d) states that a person advertising goods, services or accommodation as available for supply or provision shall be taken as offering to supply them and paragraph (e) refers to an indication of the price and so on. The word “and” is a conjunction and the interpretation that (d) and (e) must go together could be taken. It is not (d) or (e), it is (d) and (e). I appreciate the drafting difficulty. In other sections there are paragraphs (a) (b) (c) (d) and (e) but there is no “and” between the second last and the last paragraphs in the subsections. The “and” here might be misinterpreted. It might be interpreted that both (d) and (e) have to be present to constitute what is set out in section 4 (2).

[1261] Mrs. Geoghegan-Quinn: Both paragraphs can stand on their own.

An Ceann Comhairle: Paragraph (f) is deleted.

Mr. O'Toole: Paragraph (f) is deleted but the insertion of “and” between (d) and (e) might be interpreted as meaning that both have to be present.

Mrs. Geoghegan-Quinn: Both paragraphs can stand on their own. It could not be interpreted that if (e) was not present (d) would not be acceptable either.

Mr. O'Toole: I appreciate that but would the Minister agree that the insertion of “and” might lead to the misinterpretation that (d) and (e) must get together to constitute what is set out in section 4 subsection (2). I appreciate the problem but we must make sure that anything we finalise is beyond misinterpretation. A problem might arise at a later stage.

An Ceann Comhairle: Is amendment No. 4 agreed to?

Mr. O'Toole: Would the Minister of State agree——

Mrs. Geoghegan-Quinn: In relation to paragraphs (a) (b) (c) (d) and (e) paragraph (d) would finish at “it” and “and” would be added to indicate that there was yet another way that they could be guilty of an offence. That “and” would stand on its own.

Mr. O'Toole: Where is it to be inserted? Is it before “an” in (e)?

Mrs. Geoghegan-Quinn: The new section will read:

(d) a person advertising goods, services or accommodation as available for supply or provision shall be taken as offering to supply or provide them or it; and

There will be a semi-colon and then “and” will come in.

Mr. O'Toole: If a semi-colon is inserted there it is all right.

Question put and agreed to.

Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 5:

[1262] In page 6, subsection (2) (e), line 42, “place; and” deleted and “place” substituted.

Question put and agreed to.

Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 6:

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

Question put and agreed to.

Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 7:

Section 17: In page 11, subsection (1), line 29, “penalty” deleted and “fine or term of imprisonment” substituted.

Amendment No. 7 relates to section 17. The section as it was originally passed by Dáil Éireann would have had the effect of removing the former penalty of forfeiture. This point was raised on Committee Stage by Senator FitzGerald. It would have removed the penalty of forfeiture in the 1887 Act in addition to fine and imprisonment for cases involved in trade description offences, though it would still have remained for other offences under the 1887 Act. The implications of this were considered during the Committee and Report Stages in the Seanad and it is clear that the power to forfeit offending goods is in some cases essential because sometimes it may be necessary to withdraw certain goods from sale if it has been found that they do not comply with the regulations. This amendment will mean that although the penalties of fine and imprisonment for trade description offences are now all substituted for the new fines and imprisonment penalties which are provided under this Bill, the position as regards the forfeiture of goods as laid down in the previous Acts will remain unchanged.

Mr. O'Toole: I agree that this defines more clearly what is meant.

Question put and agreed to.

Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 8:

[1263] In page 11, subsection 3 (a), line 47, “of which a person was convicted summarily” inserted after “section”.

This subsection was introduced by way of amendment on Committee Stage in the Dáil to provide, in the only way possible in criminal cases, compensation for persons who may have suffered loss or damage as a result of false or misleading trade descriptions. The proposals in that amendment had to be restricted from the more open compensation provisions which occurred earlier because of the danger that such open provisions might be found unconstitutional. Legal advice subsequently received made it clear that this problem would be particularly difficult if a case of this kind were heard before a jury. For this reason it is essential to ensure that the provisions for civil redress in criminal cases can only apply in summary proceedings.

Mr. O'Toole: The insertion of “of which a person was convicted summarily” after “section” seems tautological. Section 17 (1) (a) begins by saying “on summary conviction”. What the Minister of State has now said is in direct conflict with what her Minister stated in the House when handling the original Bill on behalf of the then Opposition. I presume that the amendment suggested is to clarify the position and in these circumstances I have no option but to agree.

Question put and agreed to.

Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 9:

Section 25: In page 14, line 15, “or the provision of any services” inserted after “goods”.

This is in relation to section 25. The amendment alters 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 [1264] this measure extends to services for the first time the provisions which formerely related only to goods, it is appropriate that the saver in this section should also apply to service contracts.

Mr. O'Toole: The Minister will recall that there was a discussion on the definition of “service” and of “services” but that was teased out. We have the word “services” again in the amendment and I wonder if there is some conflict here. The section will now read: “A contract for the supply of any goods or the provision of any services shall not be void or unenforceable by reason only of a contravention of any provision of the Acts or this Act.”

Mrs. Geoghegan-Quinn: We have a problem in this regard but I am still of the opinion that the word “services” should remain in the section. I take it that the Deputy is suggesting we go back to the singular.

Mr. O'Toole: It will be a question of interpretation at a later stage. The Minister will appreciate that the word may be the subject of a court action. We must be clear as to what we mean and have regard to the interpretation that people might go along with in the event of a court action on these words. We established that the definitions were open to different interpretations. I am wondering whether the insertion of the word “services” here complicates matters.

Mrs. Geoghegan-Quinn: I do not think so because “services” in this case would be used in the sense of the plural of “service” rather than a contract of service, for example, a labour contract or something of that sort.

Mr. O'Toole: The Minister of State knows that in the event of an action being taken the line of least resistance would be adopted and that, if the interpretation is left open, a way out would be found. I am concerned about the tightening up of the words used and am endeavouring to ensure that they will be open to one interpretation only. On Committee Stage we [1265] established that the word “services” was open to interpretations other than the more straightforward interpretation mentioned by the Minister. For that reason the singular in this case might prove to be a more appropriate form.

Question put and agreed to.

Mrs. Geoghegan-Quinn: I move that the Committee agree with the Seanad in amendment No. 10:

Section 27: In page 14, line 45, “or the Director” inserted after “the Minister”.

This is an amendment to section 27. Originally in respect of expenses we had included only the Minister but we have now included the director in order to add to his independence. This amendment is in response to the point raised by Deputy O'Toole. It was raised also in the Seanad. It is only right that whatever expenses are needed by the director should be provided.

Mr. O'Toole: I acknowledge the fact that the insertion of the words “or the director” specifies exactly what is intended. However, I would have thought that the words in the section—“the expenses incurred by the Minister in the administration of this Act”—would have covered the director also as well as any agency under the aegis of the Minister, but the Minister of State says that the insertion of the words “or the director” will clarify the position. I do not wish to go back to what we have been discussing in the past few minutes but while the Minister has gone all the way in ensuring that what is meant is to be stated in the Act, I do not know whether this is necessary. While the director should be seen to be responsible for an office that was standing on its own feet and with its own budget, the amendment is to be welcomed.

I should like to hear whether this is normal drafting practice. I have been trying to ascertain the position in other instances, for example, whether an agency such as the Land Registry is mentioned specifically under the heading of expenses for the Department [1266] of Justice, apart from mention of the Minister and his office.

Mrs. Geoghegan-Quinn: I do not know the position in the Department of Justice but in my Department I am responsible for the restrictive practices end. The provisions here are exactly the same as those for the examiner of Restrictive Practices.

Mr. O'Toole: He is mentioned specifically?

Mrs. Geoghegan-Quinn: Yes. Originally, as Deputy O'Toole said rightly, we decided in the Dáil that the expenses of the director would be paid as ministerial expenses but the point was made then, and was taken, that the director's independence might be in doubt in that case and that it was absolutely necessary that he be an independent entity. This amendment is designed to give statutory recognition to his expenses, apart from those of the Minister.

Mr. O'Toole: I agree that we made a point of having the director as a separate entity from the amalgam of the Minister's agencies. From what the Minister has said it is to be understood that the insertion of the words “or the director” gives this new appointee a certain amount of autonomy or independence? If that is so, I am glad to agree to the amendment.

I should like to point out that the effectiveness of the Bill as a whole is contingent on the appointment of the director. Indeed, the Act will be ineffective until such time as a director has been appointed but when is it expected that the appointment can be made?

Mr. Bruton: As the Parliamentary Secretary responsible for bringing this Bill a long way before the dissolution of the last Dáil, there are a few words I should like to add. I agree with Deputy O'Toole that the functions of the director and the full performance of these functions are central to the effectiveness of the legislation. The amendment is to allow the expenses of the director to be met independently of those of the Minister and before agreeing to this amendment we are [1267] entitled to know when those expenses will first fall due, when it is likely that expenses will be incurred by the director. In other words, we are entitled to know when the director will be appointed. Given that the Bill is receiving a relatively speedy passage through the House, arrangements should already be in train for the appointment of the director. Advertisements should have been issued already so that applications could be under consideration and the appointment should be capable of being made immediately the Bill comes into law. If there is an hiatus here, it is most regrettable. I should like to know what has been done and, if a director cannot be appointed immediately the Bill becomes law, I should like to know why that is the case.

Mrs. Geoghegan-Quinn: We are all very concerned about the independence of the director. I appreciate just as much as the two Deputies opposite do that the Bill would not be enforceable unless we had a director. It is my intention that the advertisements for the position of director would appear immediately the Bill has been signed by the President. It was important that the advertisements should not have appeared until such time as the Bill had gone through both Houses. Otherwise, I would have been pre-empting the decision of both Houses. It was up to the Seanad and to Members of the Dáil to table amendments which were considered necessary either in respect of the functions of the director or the expenses incurred by the director, or in respect of any matter concerning the director. It is important that when functions under the legislation are being described in an advertisement for the position of director those functions should have been passed by both Houses.

I would assure Deputy Bruton and Deputy O'Toole that I would hope that the advertisements would appear almost immediately on the passing of the Bill and that the director would be appointed. I would further assure both Deputies—I said this to Deputy O'Toole before in the Dáil—that it [1268] will not be a political appointment. That is the thing that would be of most concern to all of us—that whoever would be appointed would be a person who would be well capable of putting into force this legislation and other legislation which is coming up very quickly on the tail of this Bill.

Mr. O'Toole: I should like to point out——

An Ceann Comhairle: We are getting into a rather general debate.

Mr. O'Toole: No. We are on section 27, a Cheann Comhairle, in the broader sense, if you know what I mean.

An Ceann Comhairle: The amendment only.

Mr. Bruton: We are on the expenses and we are entitled to know when they will fall due.

An Ceann Comhairle: The amendment only.

Mr. O'Toole: We are on the words “or the director” as being inserted now in the section and, as Deputy Bruton has said—and, indeed, the Minister of State has answered him— we have a right to know and this House must decide, before a director can be appointed, the terms of reference this director will have, his functions, his expenses and how they will be met. The Minister of State herself has stated that it will not be a political appointment. Personally, I do not care what kind of appointment is being made——

An Ceann Comhairle: The appointment does not arise on the section.

Mr. O'Toole: ——or who is appointed, as long as the director, first of all, has funds with which to carry out his functions and is a person who will use those funds for the benefit of the consumers. That is the kernel of this whole piece of legislation. If, as the Minister of State has said, this amendment strengthens that in that it allows the director to stand out apart from the Minister and gives him some degree of independence regardless of [1269] what his political party affiliations may be, that does not concern me—I should like to emphasise that—and as long as he does his job and has the where-withal to carry out his functions, I am quite happy.

Mr. Bruton: Could I ask a question?

An Ceann Comhairle: The Deputy may ask a question.

Mr. Bruton: In view of the fact that the incidence of the expenses involved in this amendment will depend on the timing of the appointment, would the Minister of State say what approximate delay is expected between the passage of the Bill and the appointment and the taking up of office and full function, by the director?

Mrs. Geoghegan-Quinn: As little delay as possible.

Mr. Bruton: Would it be six months or a year?

Mrs. Geoghegan-Quinn: It would be within a couple of months, no such thing as six or 12 months.

Mr. Bruton: Fine.

Mr. O'Toole: A question, a Cheann Comhairle. In that case the expenses incurred would be included in the 1978 Estimates. The amendment has resulted in the director standing apart from the Minister in regard to expenses. Obviously, in the Estimates as published there could be no heading under which this office could be given any finance because the office did not exist at the time the Estimates were published and is not yet in being. Therefore, I assume that the expenses that will be incurred by the director will come out of the ministerial pool, as you might say, and hopefully it will be a large——

Mrs. Geoghegan-Quinn: Generous sum. No shortage of money when Fianna Fáil are in.

Mr. O'Toole: So I understand. Thank you very much.

Question put and agreed to.

Amendments reported and agreed to.