Thursday, 12 March 1953
Seanad Éireann Debate
Professor Hayes: It is a little difficult to make a speech about this Bill, because the more one reads it the less one finds in it anything which would give one concrete proposals to debate. It is called the Restrictive Trade Practices Bill, and there was some discussion about it yesterday which suggested that the Bill deals with shortages of supply. That, of course, is not true. The Bill is intended to be a Bill for normal times. It is not a Bill which deals with an emergency or an abnormal period. Neither is it a Bill which deals with specific abuses which have a known meaning, things such as rings and cartels. It is difficult, therefore, to say precisely what the Bill intends to do.
There are some points about it which are quite certain. It does add considerably to the power of the State and to the power of the Minister, as representing the State. It adds to the expenses of the State and to the burden on the taxpayers. It adds to the expenses, because it provides for a fair trading commission. If that commission is to be at all effective it must consist of very carefully chosen people with very remarkable qualifications which can only be bought in the open market for very high fees. If the proper people are not procured for the commission, then the commission will not only be useless, but it will be worse than useless, for it may very well be harmful.
The commission having been obtained at certain expense, it must have a staff, inspectors and administrators. The Civil Service, as everybody knows, always grows and never decreases. I am not to be taken as in any way casting the slightest reflection on the Civil  Service, but I have never seen an example for the last 30 years where anybody said he had too much staff. No matter what you are doing staff tends to grow. When this commission is established it will get a staff, but its staff in 1954 will be greater than that in 1953. On that point, of course, the Minister is as clear as I am.
The Bill contemplates Orders by the Minister. That adds to the Minister's already great responsibility. It is arguable that the Minister for Industry and Commerce in this State is running a Government on his own. The burden imposed on the person who occupies the position of Minister for Industry and Commerce—it does not matter who that person may be—is one that is almost impossible for one individual to carry if he takes a proper view of his responsibility and does his best to carry it out. The Bill contemplates an investigation made by the commission, then an Order by the Minister and then legislation by the Dáil and Seanad. In other words, the Bill contemplates giving more work to an already overburdened Minister and throwing more work into a machine like the Dáil, already clogged up and not able to get through the work it has to do.
These additions to the responsibility of the State, to the power of the State, are entirely in character as far as the present Minister is concerned; he is a go-getter and a believer in streamlined processes and in every case where he finds a problem to solve he solves it by adding to the powers of the State, and in nearly every case to the powers of the Minister for Industry and Commerce. He appears to be a sincere believer in that, for it is his normal remedy for any problem, whether it is a clearly stated problem or not.
Each particular item of State control may be justified, but when we contemplate the steps taken here in the last 30 years, the sum total is terrifying, particularly when we remember that, theoretically, there is hardly any Party here that believes in State Socialism.
One has to inquire what the object  of this Bill is. Contrary to the speech made by Senator Colgan, this is not a Bill to lower prices, not a Bill to tax profits and not a Bill to reduce profits. Its aim is not clearly defined at all anywhere. You cannot refer to any section to find out what precisely the Bill aims at accomplishing, nor, indeed, in the discussion on the Bill have any striking examples been given as to what the Bill aims at abolishing. The Minister and Senator Colgan mentioned the case of Guinness's Brewery. Like Senator Colgan, I have never given any assistance to the brewery in its development which has been so great over the years.
Professor Hayes: Is that a sound example? Is this legislation to prevent the development of businesses like Guinness's Brewery or Jacob's factory, that is, legislation to protect the small man? I think Senator Colgan said that there were 20 breweries in Dublin when Guinness commenced, and they are all gone now. Is that an argument for this Bill? I am personally in favour of the smaller projects against the big ones, but we are not told that this Bill is a Bill to help the small man against the big man. I wonder is it?
If this fair trading commission had been in operation over the last 100 years would it have impeded the progress of Guinness's Brewery? I understand there are practices carried on by that brewery, for example, that if you bottle any other stout besides theirs you cannot use their label. Is that an unjust, unfair and unreasonable practice? By what standards would one judge? Yet this is the kind of problem that will have to be faced by the fair trading commission. Similarly, I believe Guinness's Brewery, in common with certain other concerns, insist upon cash in advance. Some people give you credit and other people insist upon your paying in advance. Is that an unfair practice? If it is, is it possible for the State to stop it?
I am all for fair trading and fair play, but having read the debates in  the Dáil and having heard what was said here I cannot find any example of precisely what is meant by unfair practices and what the remedy may be. I was given this example this morning. If I open a shop and if the person owning the shop beside me is being supplied by certain wholesalers, they may refuse to supply me with their goods. Is that an unfair practice, one wonders? If it is an unfair practice what will happen under the Bill, when it becomes an Act, to remedy that position? Will the wholesaler be instructed to supply Hayes and Mayes? Will he be compelled to give me credit? If I must pay cash, will that be any help? The wholesaler has 100 ways of thwarting me. His traveller may fail to call upon me at the right time or, again, may delay delivery of goods. What precise steps can be taken to ensure that relations between a wholesaler and a particular retailer will be satisfactory?
There is no example given and no guidance in the Bill for the honest trader except his own experience. If you are afraid that you are infringing the law at present you can secure advice about it by going to a lawyer. If you are in trouble with the income-tax authorities you can go to an accountant and if you have some doubt about principles of morality you can get advice from a theologian. But who is going to advise you if you feel you are engaged in an unreasonable trade practice? I do not think anybody can advise you. There was a suggestion yesterday that members of this House who are drapers are in some way arguing for their own interests and making their money in a dishonest fashion. That seems to me to be quite foolish. This is not surely class legislation intended to check a particular class of people and hurt them. In spite of the provisions in Schedule II of the Bill which were inserted after the Bill was introduced in the Dáil, it seems to me that this fair trading commission when it is established will be a roving commission: they can go where they like, ask any questions they wish and come to what decisions they like.
Remember that the Bill is drafted in a characteristic manner. Civil servants  and Parliamentary draftsmen have learned how to do these things. The Minister says: “I want to do something about unfair trade,” and while this may be a small part of trading generally, the Bill is drafted so as to have an enormous scope. The officers of the commission have power to go in and ask for books, documents, invoices and for all kinds of things, in addition to the power possessed already by the income-tax authorities.
The Bill will lead to difficulty as far as the honest conscientious trader is concerned, and will lead to deception, evasion and skilled concealment by the dishonest people, who are hard to catch. They will learn to evade whatever operations are carried on under the Act. I know that anybody who criticises this Bill will be glibly charged with being in favour of the practices which the Bill aims at destroying. I cannot be so accused because I do not know what the practices are, and in the debate here nothing has been said to show what they are. The Bill is very vague as to what the practices are, but there is nothing vague about the powers of the commission, which are very definite, clear and complete. What kind of person can exercise these powers? Senator Douglas, in an interesting speech yesterday, showed me at any rate as I was listening to him when he gave certain examples concerning manufacturers, advertisers and distributors that all these matters of trade, manufacturing and distribution are very varied and very complex. I find, as far as I am concerned myself—and I do not regard myself as an entirely unintelligent person—that it would be very difficult to learn a great deal about any given trade. What you think at first view may be completely wrong when something more is explained to you.
For example, over and over again I have heard it stated that motor traders were responsible for keeping certain people from getting petrol pumps. Senator Summerfield, with whom I am infrequently in agreement, said that that was not so at all. I accept his word because he is in a position to know. Senator Summerfield added  that it was the oil companies who controlled the giving out of petrol pumps. The common view is the reverse, and shows how all these things are very difficult to deal with.
What sort of people are going to be brought together on the commission to do the work? Will legal training be of any value? I very much doubt it. Civil servants cannot do the work and this most emphatically is not the job they have to do. Nobody is more foolish than a businessman who says that the Civil Service should be run on business lines because the Civil Service is not a business.
The Civil Service is not a business in the true sense of the word. The Minister is far from being the head of a business concern. The Minister has to make statements on the working of his Department and he has to go to the Dáil and answer questions, but the head of a business does not have to do any of these things. He does not have to keep files nor does he have to speak from platforms on matters of policy. The Civil Service approach is something quite different from the approach of a business establishment.
It would be good if we could get people with business experience to do this particular job. It seems to me that anybody who has experience of business and particularly experience of accountancy would be the best for these purposes. In the case of such people their earning capacity in the market would be so great that the Minister would find difficulty in getting them for this purpose.
In Section 7 an amendment will be put down that when an investigation or inquiry is started or requested it should be held by two or more members rather than by one member of the commission as provided for in the Bill. No one member of the commission should be entrusted with this particular job and with exercising the powers in the Bill.
Section 9, sub-section (3), suggests that the commission will make a report to the Minister, who will make an Order based on the report, and sub-section (3) goes on to say that an Order  under this section shall not take effect unless confirmed by an Act of Oireachtas, and if so confirmed it shall have the force of law. What kind of procedure is contemplated? Does the Minister intend to follow the rules with regard to Provisional Orders, such as the one we had to-day about the boundaries of the City of Dublin? I think that would not be a bad idea. The Minister would make an Order and then bring into the Dáil a short Bill consisting of a couple of sections confirming the Order and then refer the Bill to a joint committee of both Houses. Outsiders who are always criticising politicians do not believe me when I say that one of the most efficient things here is the use of committees, and particularly joint committees. Orders affecting businesses are much better discussed at a joint committee than in committee of the whole Dáil.
The Bill in this and many other respects seems to be characteristic of the Minister's policy by which he provides elaborate machinery and takes wide powers to do something which remains vague in itself. I do not think that the Bill will accomplish much but I am quite certain that it will add to the powers of the State. It will add to the cost of administration and it will also add to the costs of manufacture and distribution by compelling producers, retailers and manufacturers to make provision for expenses which might arise in connection with inquiries under the Act.
One might sav cynically that the Bill does not do any harm and therefore it should be left alone. But in some ways it may do harm. We had the Minister for Finance yesterday recommending economy. A short time ago I said here that one thing which would save the country money would be a year's holiday from legislation, other than the necessary Bills about national finance. Every piece of legislation which is introduced increases the Civil Service, swells the parliamentary programme and burdens the taxpayer. This Bill, too, increases the powers of the State and as far as I can see does not accomplish the purposes for which it is stated to be intended.
Professor Johnston: My approach to this Bill is partly philosophical and I hope in the course of my remarks to deal with Plato and Aristotle in the ancient world and Berkeley in the modern world. The Bill is a Restrictive Trade Practices Bill and one might well ask restrictive of what? I think the underlying idea seems to be restrictive of competition. Competition is one of the things which increases supply and lowers the price to the eventual consumer and consequently increases consumption of the people. Therefore, I think that the real objection is not so much restriction of competition as restriction of consumption, because there are some circumstances in which an economy operating under the disability of restrictive consumption tends to frustrate production and impoverish the community. What the Bill really seeks to do, or what it attempts to carry out, is to take out of the economy the anti-social use of economic power and discourage the use of the kind of pressure in the supply and distribution of goods which by raising prices unnecessarily, would diminish the flow of goods to the final consumer and therefore inevitably diminish production itself in its earlier stages.
We all agree that it is desirable that the anti-social element should be removed, but it might be worth while to inquire into the origin of that anti-social tendency. I am afraid that anti-social behaviour is as old as human nature and opportunities for it to behave in the kind of way that we find objectionable are as old as the exchange economy which goes back certainly to the time of Plato and further. Plato had a prejudice against the class of individuals whom he called retail traders, for reasons which are not entirely irrelevant. I am quoting now from Plato's laws in a book, published by a man called Laistner, on Greek economics. He inquires why men regard retail trade as an ignoble and disreputable occupation and the answer he gives is:—
“It is a small class of men, rare by nature and brought up by a first-rate training, that can show patience and moderation when involved in  wants and desires, and, when the power to acquire much wealth presents itself, is yet temperate and prefers moderation to excess.”
Plato recommends that the class of shopkeepers should be as small as possible. For reasons of my own, I am inclined to sympathise with this view, but it might interest the Minister to hear the way in which Plato recommends that the power of the State should be brought in to make traders behave:—
“In order that such an one may be as good or as little bad a denizen of the city as possible, it shall be the duty of the law guardians to reflect that they are guardians not only of those whom it is easy to watch and prevent from becoming lawless and vicious, men in fact whose descent and education are alike of the best; but they must watch more closely those of a different disposition who are engaged in occupations which strongly weight the scale in the direction of evil ways.”
“It must be the duty of the guardians of the law to come together with those who are experienced in each class of retail trade and, when they have forgathered, to see what takings, coupled with necessary expenditure, ensure a moderate profit for the trader. The recurrent expenditure and takings are to be written down and fixed and the market superintendents, the city magistrates and the country magistrates are to keep a close watch thereon. It may be that in this way retail trade will benefit everyone and at the same time will do very little harm to those who engage in it in the city.”
Now this Bill seems to me to be somewhat platonic in spirit and the Minister seeks, perhaps rightly, to bring the heavy hand of the State to bear on human character so as to make everyone concerned with business  behave with a sense of social obligation.
Aristotle was concerned with much the same problem but he regarded the abuses incidental to trade as being properly the indirect result of the invention of money. Perhaps I could save the time of the House by quoting from a contribution I made myself 15 years ago in “Hermathena” in describing as briefly as may be the general analysis by Aristotle of how this objectionable feature arises. Briefly, the science of supply has two aspects. One concerns the provision of the things necessary for life and is good and natural, but the other is the perversion of the science of supply which arises from the abuse of the possibilities of the monetary economy. The monetary is a developed form of the exchange economy and the object of the exchange economy is to facilitate consumption by the exchange of superfluities. Once money had been invented as a result of necessary exchange, a second kind of science of supply arose, namely, Kapelike, which in actual fact appears to be what we call profiteering. Hence the science of supply came to be concerned mainly with money and men came to regard its primary object as the acquisition of a maximum amount of money. So that people, instead of concentrating their attention on increasing their own wealth by increasing the supply of goods and services to their neighbours, tended to strive for the maximum amount of money irrespective of the anti-social consequences of their behaviour.
Production under modern conditions is a long-drawn-out process with many stages. The goods pass from primary producer through many stages and different ownerships to the ultimate seller and it often happens, especially in time of glut, that production at the primary end is frustrated because the price policy pursued by various interests, especially at the end of the system nearest the consumer, is such as to restrict the consumer demand for the products and cause goods to pile up at the primary stages of production, bringing about loss and frustration  to the primary producer and those engaged in the intermediate stages of production.
High prices at the consumer end of the scale—that is, unecessarily high prices—restrict consumption, and therefore indirectly restrict production. One might take an analogy from the phenomenon of the Barrow drainage which, I think, happened at a certain stage. When the Barrow was first drained, the upper reaches of the Barrow were drained but the lower reaches remained obstructed and the only result of draining the Barrow at that time was to increase flooding because of the obstruction at the outlet. Similarly, the anti-social behaviour of the people who control the outlet of consumption can at times negative the efforts of the producers at an earlier stage and bring about a restriction of production because consumption is restricted. That maximum consumption is necessary to maximum production is an idea of Bishop Berkeley which he seems to have borrowed from the great French thinker, Boisguilbert. I would like to quote more from a paper I contributed about 15 years ago. He said:—
“‘All the most exquisite products are only dung from the moment they are not consumed.’‘If ability to consume constitutes wealth, so does wealth spring from this very consumption. It is necessary to consume the goods produced if consumption is to continue, hence arises the need for mass consumption, for the consumption of the few will not keep fully occupied the hands of the many.’ (Boisguilbert.)
Berkeley is eloquent also on the futility of a money that does not circulate freely, and he shares Boisguilbert's notion that consumption is in a true sense the cause as well as the object of wealth production. He queries ‘whether comfortable living does not produce wants, and wants industry, and industry wealth’.
Like Boisguilbert, he perceives that the disinheritance of the masses in its effect on consumption is destructive of industry, and both men advocate in fact a more equalitarian  society. Boisguilbert maintains that this could be accomplished without injury to the rich—in fact, to their ultimate advantage. ‘If the rich understood their interests they would wholly relieve the poor of their taxes, which would immediately create more well-to-do persons....’”
Professor Johnston: In fact, both thinkers regard the desire to consume as the dynamic of production. It is because these are anti-social practices which diminish consumption and therefore production that I am in sympathy with the main object of this Bill. The self-interest of the tradesman is consistent with the public good when he seeks his profit by maximising production. There are two main ways in which a person may aim to achieve maximum profit—one is by making scarce things plentiful and the other is by making plentiful things scarce. In so far as this Bill is to prevent the second method of achieving maximum profit, the Bill is thoroughly desirable.
Adam Smith held that the self-interest of individual producers and tradesmen was enough to ensure the common good of the whole community. He held that, in seeking his own profit, the tradesman and producer are guided by an invisible hand to achieve the good of the community, but the same Adam Smith also pointed out that tradesmen in the same line of business could not get together without conspiring to rob the public— so he had occasional glimpses of a different outlook on life.
We come now to resale price maintenance. This can arise in various ways. It can arise not because the entry into a given occupation is restricted, but because, in the case of certain occupations, the entry into them is not restricted enough. There are occupations, especially in small-scale shop-keeping, in which, owing to the excessive numbers engaged trying to make a living in that way,  margins of gross profit must be high and retail prices must be maintained at a higher level than would be necessary, even in the interest of the traders concerned, if fewer persons were engaged in that occupation.
May I remind the House of some of the facts in regard to the distribution of goods which were made public by the Census of Distribution of 1933? The figures and prices are now very much out of date, but I feel the facts contained in that report are still very much the facts in regard to our economy. In fact, the central problem of our economy is that too many people are trying to make a living by buying, selling, handling, distributing and transporting things and not enough people are actively engaged in producing the things we all want to eat, and wear and live with. That Census of Production of 1933 showed there were 38,000 retail establishments in our country. It showed that 51.2 per cent. of the sales were made by less than 7 per cent. of the total number of the shops, that that 7 per cent. of the total number of the shops employed only 26.5 per cent. of the total personnel engaged, which amounted to about 120,000. Of the total of 38,000 shops, 18,000 sold less than £500 worth of goods in the year.
It is quite evident from these figures that if the larger and presumably more efficient shops had been able to double their trade and double their personnel —the persons occupied in selling in those shops—they could have done all the retail trade that was done in the country at that time and at the same time would have needed only about half the personnel actively engaged in doing that trade. In other words, 60,000 persons were actively engaged in the retail trade and were rendering services really superfluous from the point of view of economy, because they could have been done without. And because they were “on the strength,” so to speak, the level of prices and gross profit had to be higher and therefore consumption reduced for the rest of the community, more so than would have been the case if there had been fewer establishments and keener competition between them and a lower  margin of retail profit. I do not know whether the present Bill can deal with that particular problem, but at all events it can investigate certain aspects of it and I hope its powers will be used to do so.
I had an example of resale price maintenance in the book trade. I published about two years ago a book called Irish Agriculture in Transition, through a Dublin bookseller. The whole of the printing bill was paid on my behalf outside the finance of the publisher altogether. The book was priced at 15/. Before the last war, the same book could have been published easily at about half that price. I discovered to my horror that for every copy that was being sold for 15/- the publisher was crediting the printing bill for which I was responsible with only 7/6 and collecting another 7/6 for himself in respect of the ones he sold over his own counter, and collecting 2/6 for himself in respect of every one which he sold as a wholesale distributor to other retail bookshops. However he agreed to raise the contribution to the printer's bill to 9/- for each copy sold.
I had some discussion at the time as to whether it would be possible for me to sell the book in the ordinary channels of retail trade at 15/-, but to have a lower price to favoured classes of possible purchasers, especially the young farmers' clubs and so on, of say 12/6 or less; and I was told I could sell it at any price I liked to those other classes, but the retail trade in books would have nothing whatever to do with it, good or bad, if I went outside the channels of ordinary retail trade distribution. I had to have a fixed price, the 15/- price, and I could not quote a lower price in order to favour any other class of would-be readers. I thought that was a bit steep.
There are larger aspects of this problem for it concerns what I regard as the Achilles heel of the whole free capitalist economy. Fundamentally, the capitalist economy is co-operative, in the sense that we all need each other's services and cannot exist apart  from one another, but psychologically the organisation of the capitalist economy emphasises rather the conflict of interest between different sections of the economy than the fundamental community of interest that binds us all together, if we look at it in a deeper analysis. Consequently, sections of the economy are tempted to increase their individual shares of the total national income by a process which amounts, in fact, to attempting to beggar their neighbours instead of concentrating their attention on increasing their contributions to the common pool of goods and services and hoping to get an equitable share of that increased contribution for themselves.
This Bill emphasises the social obligation of all those who occupy key positions in our economic life, and, if only for its educational effect, for its effect on public opinion and the advantage we would gain by investigation of anti-social practices, the Bill, I think, is thoroughly desirable, even if nobody ever becomes amenable at law as a victim of any of the penalties mentioned in it. I welcome the Bill, but I would welcome still more a progressive modification of our free economy in a more consciously co-operative direction. I will not take up the time of the House in going into that in detail now, but, if anyone is sufficiently interested, he will find my suggestions for that modification in my book and if he buys it, he will help me to pay the printer's bill.
Mr. O'Donnell: I was rather glad to hear Senator Johnston start off to deal with the Bill in the realms of Greek philosophy and I hoped that at some time he would have looked at it from the point of view of Greek mythology as well. It is quite apposite that a Bill dealing with restrictive practices should in some way be associated with the Golden Fleece. I was hoping that the idea would run through his mind and that he would give us a description of the anti-social effects of Jasonism in the old days.
One of the most extraordinary phenomena witnessed in this House for a long time has been the number of Pharisees who have made their appearance  in the Chamber as a result of the Bill. People have held up their hands in horror and have said: “Thank God, I am not as other men.” People have cried: “Is it not nearly time somebody thought of these restrictive practices which are confined solely, by the grace of God, to manufacturers and retail traders?” Is it not a terrible thing that, in a so-called Christian country, where the majority of us are Catholics, we should have such an anti-social outlook as that which has been expressed by many speakers during this discussion—a completely anti-social outlook in so far as they are quite prepared to condemn any other section of the community but their own for the sins which this Bill says are being committed against the public? They went even further than the Minister. The Minister was extremely careful to say that restrictive practices were only “alleged” and he repeated time and again the word “allegation.” Not once did he say they were there, but it was said for him by other people who spoke of manufacturers and traders as if they were the sole sinners in our community.
I oppose this Bill for no other reason than that it is an unfair Bill, a discriminatory Bill. If there are restrictive practices, they are not confined to any class of the community. I heard the Taoiseach recently, when speaking about the milk strike, say that he was not going to allow the public to be held up to ransom because of any class distinction or for the benefit of any section. But here we have a Bill which is obviously directed and stated to be directed against manufacturers and those engaged in trade. I go so far as to say that, in the professions, there are restrictive practices, unfair practices. The labour element is protected by law and why that should be sufficient in itself to remove them from the operation of the Bill, I do not know. Even banking practice has its restrictions, but none of these have been singled out for penalties or for odium. Nobody is held up to the public gaze as the great sinner of the new Ireland, but the manufacturer and the retailer. This Bill is unfair in that it discriminates against people who, it is alleged, have engaged in unfair and restrictive practices.
 The Federation of Irish Manufacturers at a general meeting held in the Gresham Hotel passed a resolution on this matter. The federation called to that meeting all the trade organisations of prominence in the country and the meeting passed a resolution which reads:—
“That while opposed to restrictive trade practices no matter by whom carried out this meeting, being of the opinion that the terms of the Restrictive Trades Practices Bill, 1952, give wide, dangerous and dictatorial powers which could be used to the disadvantage of the public and would and could lead to the introduction in effect of a socialist form of State; that we call on the Government to defer consideration of the Bill and to meet representatives of the various trades associations with a view to discussing the practices which the Minister has in mind so that a satisfactory and agreed Bill would be introduced.”
Despite that resolution passed by that representative body and despite the fact that various members of the federation in various places had spoken against the discriminatory nature of the Bill, no move was made by the Minister to discuss with any of these people their objections to the Bill.
It has been stated here that this is another form of inquisition, a new method of inroad upon the private lives of people in trade. I wonder how far Governments are justified in that line of conduct. I quoted already in this House Oliver Puff and I always think of him when I hear Ministers talking about private enterprise and about Government policy generally in relation to private enterprise, and then see them implementing, in their laws, restrictions upon the developments of private enterprise. The Minister may say that these are anti-social restrictions, as Senator Johnston has dubbed them, but I would say, as Senator Colgan said yesterday, that he has plenty other means of suppressing these anti-social activities, if they are anti-social, apart from the implementation of such a Bill as this.  This Bill is an extremely dangerous Bill, even for the people who now applaud and welcome it. It is dangerous for Senators Colgan and McMullen, who spoke yesterday and some day they will learn that for themselves. The Minister has even suggested that the legal protection which they now enjoy and which removed them from the operation of the Bill may be taken away and we then may have the Pharisaical position of my having to get up here to defend trade unionism as being a good thing in itself. This Bill, in its implications, is one of the most dangerous Bills that has been introduced since the Oireachtas was set up. It seeks to give, through the Minister, powers to a commission which I do not believe should be given and which may be argued to be derogatory to the Constitution itself.
The Minister agreed that restrictive practices in themselves are not necessarily a bad thing. We have them all around us. The art of living is a restrictive practice in itself. Restrictive practices even go so far as to involve the Press, finance and every phase of one's life. Even in our domestic lives, restrictive practices exist. These may or may not be in themselves a bad thing. It is assumed that because certain people are not mentioned in this Bill and cannot be affected by it that all the other people affected by it must, of necessity, be bold, bad men out to rob and prosper at any cost to the other members of the community. On behalf of Irish manufacturers, I object to that, but that is the inference that will be taken from the Bill.
The Minister never said that himself. As far as I can recall, he said that they may apply only to a very few. The trouble about it is that it is not what he said but what others have said which has created a state of mind in the country which will be ruinous to industry. The manufacturer and the trader is held up to abuse and calumny. That is the new outlook in Catholic Ireland. That is the sort of idea which is being fostered because of this Bill.  The Bill singles out people as being new Publicans, so to speak.
The Bill, apart from the motives implied in it, gives the Minister extraordinary powers to create a new fair trading commission composed of ordinary human beings who are to be definitors, but they have not got any theological basis upon which to define what is or what is not a restrictive practice. Restrictive practices are not even defined in law. The section, if it has any effect at all, should be completely removed, with the exception of paragraph (k). The word “other” might also be removed.
I have a great deal of sympathy with the point raised by Senator Johnston when he stated that there are far too many distributors and too few producers. If we do not want that state of society, we should go out and change it. We should either be a socialistic State or a private enterprise State. You had the extraordinary case of some Americans coming across to tell us that we were neither, but you cannot have a foot in both camps. Both sections of the people are held up to ridicule as a result of the implications in this Bill. Manufacturers and traders are held up as being dangerous and as the boys they are after. It is a peculiar comment to make that the bold, bad men are only business people and manufacturers. They are the types who are not politically banded together and have not voting strength, but maybe, as a result of the continued pressure on the economic life of the country and of the outcry by some of the Pharisees, something will arise out of it and the State will not legislate purely on a class basis.
This Bill contains extraordinary disciplinary powers and powers of penalty. The ordinary power of appeal which is enjoyed by the humblest person in the land will be refused to anybody found committing or infringing this Bill when it becomes an Act. There is nothing in the Bill to give me the right of appeal to the courts in the event of the commission having wrongly instructed the Minister. The sole arbiter is the Minister. I am not referring to the Minister or any other Minister in any personal sense. It is a very serious  matter to give any Minister, no matter who he is, the right to decide, on the advice of a group of definitors whom we know nothing about, that I or anybody else is committing an anti-social act, but that is what this Bill is tantamount to.
The manufacturers and the traders are the bold, bad boys. I feel quite indignant about this. I know that this Bill was prompted by the idea that somebody was getting away with murder. The Federation of Irish Manufacturers has time and again stressed the fact that they do not stand for anybody amassing wealth under unfair conditions at the expense of other members of the community, nor does the federation oppose the Minister's statement that restrictive practices are in being, but they do oppose the Bill and they do so purely because it is a class matter.
If the Bill has to go through—and listening to the speeches from the Labour members and others it seems that it will go through—I would suggest to the Minister that there are many changes which he should consider before making the Bill law.
I would have thought that it would have been wise for the Minister to consult the organisations that passed a resolution in the Shelbourne Hotel, Dublin. He should have given them the benefit of a hearing. No matter what the Minister may think, all wisdom does not reside in the ministerial body. We go out and talk about democracy but, nevertheless, the people mainly affected by this Bill were not consulted. The people mainly affected by the Bill ought to have received a hearing in order to find out what they thought of the Bill or whether they agree or disagree with it. They were never even heard. In order to become popular to-day all one has to say is that the manufacturers and the traders are the people who are getting away with it, but God help the farmers and labour.
I suggest to the Minister that the Bill needs an immense amount of revision and I would suggest that, before he proceeds, even with the great majority he will have in this House,  he may consider its wider application before it is too late. If there are restrictive practices and you allege that they are not confined to people in trade, and if you are going to pass a Bill which itself is indiscriminate to a confined class of people, and you say that that class only are carrying on restrictive practices, then you are misleading and anti-social. If you have to have a restrictive practices Bill, why not have a Bill which would apply to all sections of the community. It is not my job to argue that there are restrictive practices in all classes of the community, but it is alleged that there are, just as it is alleged there are restrictive trade practices.
As I remarked before, under the present economic system we go around and create monopolies. It is an arguable thing, but it may be a good thing if we had only one source of distribution for one type of goods and so escape any restrictive practice employed, because you could only get, for example, motor cars from Senator Summerfield and shirts from myself. It may possibly be quite a good thing for the community. So long as you have the present economic build-up and are prepared to continue to live with thousands of distributors, then you are bound to meet with ordinary human frailty, and it is not fair that these human frailties should be ascribed to one section of the community.
This Bill confines itself to restrictive practices in trade, and I am protesting as strongly as I can against its unfairness and discrimination, and protesting against many of its clauses. There is sub-section (5) of Section 9, for example, which gives the Minister immense power, and I doubt if any Minister in any country has been given any greater powers, even in madly socialistic countries like Russia and elsewhere. In Section 9, the Minister may, having considered the report of the commission under Sections 6 or 7, if he thinks fit, by Order, prohibit specified arrangements and agreements concerning the supply and distribution of goods and may make such provision as he thinks necessary to ensure equitable treatment  of all persons in regard to the rendering of any such services and the avoidance of unfair practices.
Now, that is all right, so long as we have the present Minister in office, or the Ministers we have had in office, but a day may come when a Minister may interpret that Bill in such a fashion that all sorts of repercussions which were never envisaged before might occur. I would say that a lot of the people who have welcomed this Bill have taken up a burning torch that may have an extraordinary effect upon themselves. It is all right now, because they are not affected and because they say, as I remarked before: “We are not as other men.”
It is a dangerous and anti-social Bill in the implications behind it: it is a bad Bill, because it is a class Bill, and I appeal to this House, because of its sense of justice, to reject the Bill fully and completely. It could have very serious repercussions on our industrial development, not because it did not set out to do a good thing and was not given consideration, but because of its bad moulding and the possibilities of misinterpretation.
Mr. Burke: I listened with great interest to the Minister's speech, but I must confess that it did not convey the same impression to me as did reading the Bill. In reading the Bill one would imagine that the country was ridden by rings and monopolies, and that there is need for stringent and far-reaching legislation to deal with that evil. The fines envisaged under the Bill are, in my experience, the highest I have ever seen put down in a piece of legislation and, while these fines may not affect considerably very large businesses with large turnovers of many millions a year, they may be more than adequate for driving out of business the smaller firms, who for some reason or other may come under the vigilant eye of this chamber of justice. These smaller firms may not be able to protect themselves as adequately and employ the same skill in protecting themselves as the larger firms, and, in that respect, I feel there is a danger.
 In my opinion, the powers given in the Bill ought not be given to any body of mortals because they are too far-reaching. I do not want to say that I disapprove of this Bill in toto as I believe that some type of legislation of this sort may be necessary, particularly in a small country where many items are made by a small number of protected firms. In many cases, items are distributed by single agents for a certain specialised type of article sold and distributed in this country and that lends itself to a form of restrictive trade and distribution.
I do not want to burden the House by repeating much of what was stated by other speakers, but there is a type of restriction to which no other speaker has as yet referred, and that is in the sale of capital goods. I believe there is a considerable amount of regulation and restriction with regard to the way in which these goods may be used. Some of them are rented and may be used only within a certain area, within so many miles of where the same type of machinery or equipment is operated. That lends itself to the worst form of restriction, and applies in industries like the cinema and boot factories. Washing, cleaning, packaging, laundry and other type of machinery which is offered for sale as well as some forms of hire-purchase are some of the things which the Minister might consider in the Second Schedule, which has been made wide enough to deal with any other matter which is restrictive in its import.
I would like the Minister when he is concluding the debate to tell us some of the things which he definitely considers are not restrictive, because there are so many things liable to be restrictive and the powers given are so wide that it would be well if the Minister would indicate what he considered was not restrictive. Price fixing of itself ought not be considered as an offence, particularly when it can be shown that the price margins taken were fair and reasonable. Those engaged in industry and commerce sometimes have to fix a price margin in order to plan production and to give them an opportunity for developing their business. Without knowing what they were likely to charge, they  would not be able to plan the future progress of either their industry or their commerce.
With some other speakers I would like to know why this Bill is being applied to some sections of manufacturers while the rest of the community go free. It certainly leaves a bad taste in the mouths of one section of the community who are engaged in free competitive enterprises to find that they are open to investigation, while other sections of the community are not interfered with. The experts who recently examined the economy of this country stated in no uncertain manner that the amount of profit being made by those engaged in industry in the country is on the low side and does not allow sufficiently for capital development and that sufficient profit is not being made to allow for the development of those businesses.
I also think it is true to say that industry in this country has increased its efficiency and its output per unit employed more than any of the other groups in the country. The industrial group is the one group that has shown efficiency during the last 20 years more than any other section in the country.
In conclusion, may I say that there are far too few who want to enter into and take part in the burden and risk of industry and commerce? Everybody nowadays is looking for protected positions carrying pensions and emoluments, etc. We should beware of creating a climate whereby people will be discouraged from engaging in industry and commerce. If we create such a condition we will do a great deal of damage, because it must be remembered that trade and industry in this country are what the people in the professions get their livelihood from. The more thriving the industry and commerce of the country the better will be the livelihood of the other sections of the community. We must be very careful not to put more obstacles in the way of enterprise and in the way of the ambitions of people in the form of legislation directed against one section of the community only.
Mr. S.T. Ruane: The Minister has not been specific in the types of restrictive practices which it is intended  to rectify by this Bill. We may take for granted, however, that it would not have been introduced if certain objectionable practices were not there that should be rectified. We had restrictive practices in this country as far back as 50 years ago when certain wholesale organisations had endeavoured to get millers to stop supplies of provisions to small traders in the villages and small towns. Mind you, it did not take legislation to cure that evil; a healthy public opinion cured it in a very short time because there were certain millers who would not submit to such dictation. Those millers continued to supply the small traders and this put an end to certain efforts by wholesalers to become monopolists in their districts. We have rings good or bad. Traders have to protect their interests, and as long as the restrictive practices which necessarily follow do not limit production, discourage competition or manufacturers from selling their wares to all traders who desire to handle them they should not be interfered with. In such circumstances I do not think that it is necessary to have legislation to cure those practices. They will in time correct themselves if resisted by those they affect.
I would think it would have been possible to have written into this Bill the types of restrictive practices which it was intended to deal with since the Minister must have had in his mind what they were when the Bill was being drafted. If that had been done, it would have been of great assistance to all interested who could examine whether they were carrying on such practices, and if they found they were they would realise in time whether they were right or wrong and correct their methods before they were lawfully corrected as a result of this Bill.
It has been alleged that many of these abuses were in new industries protected by licences and quotas issued by the Minister's Department. If that is so, I feel that, without any Bill of this kind, the Department which has power to issue licences could easily cure such a position by withdrawing these licences from the people engaging in practices of that sort.  One or two examples of that kind would be sufficient to do away with further contraventions that are a grave injustice to the consumer.
So far as the setting up of the commission is concerned, as Senator Hayes pointed out that it will be a difficult matter to get the proper people for this type of commission. I certainly agree with Senator O'Brien that the chairman should be a man with a judicial training. I think that on a commission such as this, where the chairman is called upon to enforce rules or to conduct inquiries of this nature, it would be better to have a judge who would be removed from any fears of victimisation as long as he carried out the law according to the statutes.
I am of the opinion that this Bill, when it comes into operation, will make a valuable contribution towards the lowering of the cost of living, and if it does, that it will certainly be justified. If the Minister feels that this Bill is necessary in the interests of the country and the community he is the person in a position to know, and so administer its provisions that they may have the desired effect. I hope it brings about the remedies desired and corrects the abuses that it is intended to correct.
Minister for Industry and Commerce (Mr. Lemass): Senator Hayes, in opening the debate to-day, said that he did not know what practices this Bill is aimed at, and Senator O'Reilly last night asked for more definite proof that restrictive practices are widespread and of such character as to require legislation to deal with them. I do not suppose that all university professors and solicitors live in an atmosphere so completely divorced from the realities of life as that in which Senators Hayes and O'Reilly appear to move. The fact that restrictive practices in trade are widespread is well-known to everybody. It is somewhat amusing to listen to Senator O'Donnell expressing his indignation  that anybody should suggest that to be so. Not merely has the prevalence of these practices been frequently the subject of comment in the Dáil and the Seanad but the files of the Department of Industry and Commerce are filled with letters of complaint from individual victims of those practices. If I hesitated to give details of practices which prevail it is because, although complaints regarding them were received, no detailed investigation followed. It did not follow simply because the power of investigation was not there.
Personally, I have little doubt that the practices to which the complaints referred were anti-social in their effect. I must emphasise, however, that neither the prevalence of the practices nor their social effects have ever been subjected to investigation. They will, I hope, be investigated after this Bill is passed, but, if illustration is required, I can give it. I told the Seanad when introducing the Bill that the complaints on the Department's records refer to about thirty commodities. No Senator will expect me to refer to all these different complaints or illustrate them by reference to all the commodities to which they related. It is alleged, however, that, in the case of certain commodities, agreements exist between distributors and manufacturers under which trade in these commodities is confined to members of particular associations and that sometimes these agreements extend outside this country to people supplying foreign goods to wholesalers in our country.
In the case of wrapping paper and paper bags, such investigations as I have carried out suggested that the arrangements in that trade are fairly water-tight. Not merely would a manufacturer not dare to attempt to give supplies to any person who was not in the trade association, but if he did so, he would immediately lose the trade of all other persons who were members of that association. It is also true that no new persons can secure admission to that association except by fulfilling impossible terms. In the case of most building supplies it is clear that their distribution is controlled by means of agreements between manufacturers and  the Irish Builders' Providers Association and that association appears to be able to exercise influence upon foreign manufacturers in regard to the supply to wholesalers here. That obtains also in respect of sheet glass. The sale by wholesalers of sheet glass is controlled by a trade association which is not merely able to confine sales of that commodity to its members but appears also to have similar powers of influence over suppliers in other countries.
In the case of radios, it is impossible to get a radio for retail sale except one is approved of by the appropriate retail trade association and agrees to maintain the retail selling price fixed by the manufacturers. I could go through this list here and give numerous illustrations of restrictive practices which everybody knows prevail. It is impossible to get a supply of coal for retail sale unless you are a member of the Eire Coal Importers' Association and it is quite clear that foreign colliery agents limit the sale of coal to this country to persons who are members of that association. There are a variety of different allegations relating to a variety of practices all of which appear to be objectionable on the face of them. Some may be justified on the ground that they are necessary to eliminate graver abuses but my view is that all practices of that kind should be approached with suspicion.
Where traders combine among themselves to confine trade in particular goods to themselves and make rules designed to eliminate competition between themselves, then it is probable that the public interest is being sacrificed to their special interests and there should be power to investigate those practices and to prevent them if they are held to be anti-social in effect.
Senator Douglas said that the name of the Bill is somewhat misleading and that it should not be called the Restrictive Trade Practices Bill but the Unfair Trade Practices Bill, because it would be directed towards eliminating only those restrictive trade practices which are unfair. While I agree that that is the purpose of the Bill, may I say that I do not mind what name is given to it—whether Restrictive Trade Practices or Unfair Trade Practices or  the Confirmation of Plato Bill or any other name Senators may suggest—so long as the effect is the same. But I do not agree with Senator O'Donnell's approach that legislation should be confined to the types of practices which we are agreed are unfair. We must assume that all combinations among traders to regulate trade are suspect and must only be allowed to operate when, after examination, they are deemed to be beneficial to the community. May I say in that regard that I was completely taken aback by Senator O'Donnell's statement that some associations which have a particular interest in the Bill were not given an opportunity of expressing their objections to it. I know of no such organisation. Any trade organisation or association that wished to make representations or suggest amendments was given ample opportunity of doing so.
There was no attempt on my part to rush the Bill through the Legislature. It was introduced last summer and circulated while the Dáil was in recess and was under public discussion for many weeks before the Second Reading was taken in the Dáil. During those weeks a very large number of trade associations sent delegations to the Department of Industry and Commerce to express their views on the Bill. Some I met personally, some I was not able to meet personally; but no trade organisation was denied that right.
When Senator Douglas urges that this Bill should be confined to designated practices which are admittedly wrong and anti-social, my answer is that the fair trade commission should be asked to regard every arrangement between traders which is restrictive of competition with suspicion, to regard it as something which should not be allowed unless a very strong case can be made by those who devised it that it serves some useful public purpose. I do not deny that many restrictive practices in trade can be justified or can be shown not to be anti-social in their effect, to be designed to eliminate possible abuses or improve the standard of service given to the public or to minimise distribution costs. The onus of proof is, however, on those who make that  claim. If they have practices which their total effect restrict competition in any case, then they have got to show some impartial body that they are justifiable on one or other of these grounds. If they are so justifiable, however, I think they should be allowed to operate, and I cannot conceive circumstances under which the Dáil would legislate to eliminate any established practice in any trade unless it could be clearly shown, following investigation, to be detrimental to the public interest.
When Senator McGuire said that the individual manufacturer should be allowed to decide for himself whether he will sell his goods to wholesalers only or to retailers only or direct to consumers, I am in complete agreement with him. When he argues that a producer or a wholesaler should not be required to sell goods to some retailer who is not creditworthy, I am also in agreement with him.
Mr. Lemass: Or someone he believed not to be creditworthy. Does any Senator seriously believe that it is possible that a Minister would make an Order relating to these matters and prohibiting a manufacturer deciding his trading policy in a matter of that kind or requiring him to supply goods to people who could not pay for them, and bring that Order to the Houses of the Oireachtas and get it confirmed here? It just could not happen.
Many of the arguments of that kind advanced during the course of this debate appear to be based on a misreading of the terms of the Bill and certainly to be a misunderstanding of them. One of the matters to which Senator McGuire referred and in which I am personally very interested is the practice of some traders in selling goods at less than they cost them in order to attract trade to their establishments or to discourage other people selling the same goods. That “loss leader” practice which Senator McGuire had in mind is, from many  points of view, a restrictive practice. Under the laws of the United States of America it is in fact banned as restrictive. A trader under American laws may not sell goods at less than they cost him, for the purpose of confining trade in those goods to himself or restricting competition in them. I do not think there is any provision in this Bill which will operate to encourage the development of practices of that kind, which could themselves be as restrictive of competition as the more direct activities of trade associations.
Senator Douglas asked for an example of fair trading rules, the type of rules that might be made by the commission under Sections 4 and 5. I am somewhat hesitant about the desirability of giving an example, but in the course of the debate in the Dáil I mentioned many types of complaints of restrictive practices on which I personally had considerable doubts. I told the Senate that petrol was the commodity in respect of which most complaints had been received, complaints that oil companies were refusing to supply petrol for retail sale to people who wanted to enter into that business, and refusing it unreasonably.
I think that it is necessary to have rules relating to the retail distribution of petrol; I think there are strong arguments against allowing petrol to be sold by public-houses or hotels or any establishment which is not bona fide engaged in the business of servicing motor cars, any establishment which is unable to provide for motorists other facilities in addition to a supply of petrol. At least, I think that it should be possible for those who are engaged in that business to put up strong arguments in favour of confining retail sales of petrol to persons who are engaged in the business of operating motor garages and for refusing supplies for retail sale to persons engaged in the business of running public-houses. If I mention that by way of illustration, I again want to make it clear that I am not prejudging any decision that the fair trade commission may take on any proposition that comes before them.
One could multiply the number of examples of trade practices which,  though restrictive in their effect, may have another consequence. The best known retail price maintenance agreement applies to cigarettes and tobacco. It has been operating for many years. The tobacco manufacturers give supplies of cigarettes to retailers on agreements that they will retail them at the prices fixed by the manufacturers. Before the war, when some establishments were selling cigarettes at less than the prices fixed by manufacturers, there was, so far as my recollection goes, public antagonism to these price-cutters because of the effect which the development of the practice might have on the standard of living of other retailers and the standard of remuneration of their staffs. Whether it is desirable that we should make illegal these retail price maintenance agreements of tobacco manufacturers or not is a subject on which I would be slow to make up my mind, until I received the report of this commission following a very full investigation of the subject.
Many Senators said that this Bill is increasing the area of State control. I would like the House to be clear as to my attitude to that issue. Since I resumed office as Minister for Industry and Commerce, I have been busily engaged in demolishing the structure of controls which was built up during the war and which I found more or less intact when I resumed office in 1951, and, if anything, somewhat more complicated. The business of getting rid of control is not, however, quite so easy as some Senators appear to think, and if anyone has any doubt on that subject I will merely mention the subject of price control, on which I have come long ago to the opinion that it would be generally desirable, certainly in its long-run effect, if the whole apparatus of emergency price control were now dispensed with.
There is no point in getting rid of Government controls, and particularly Government price controls, if combinations of traders are immediately going to get together to impose their own controls, and a necessary preliminary to the demolishing of State regulation arrangements in any trade, and particularly  these special powers of price control conferred on the Government by emergency legislation, is the enactment of legislation of this kind which will give a means of ensuring that State control is not replaced by the control of private traders concerned only with their own interests.
When, just before Christmas, I met the Federated Milk Suppliers of the Republic, as the organisation is called, to discuss the price of milk and the price of butter, I suggested to the organisation that one thing the Government might do was to decontrol milk and butter and get completely out of the picture of trading in these commodities. Immediately, the whole conference began to discuss, not the consequences of free unrestricted competition in the trade, but what arrangements the Federated Milk Suppliers' organisation might make in order to replace Government control by a control of their own. In many trades, these Government controls are being maintained because they are necessary in order to prevent a much more objectionable type of control by the people engaged in these trades.
This is not an issue between socialism and private enterprise. Socialism is essentially monopolistic and one cannot conceive a situation in which the State might engage in any type of business without eventually having to eliminate all competitors in that business. The history of the E.S.B. is a case in point. The purpose of this Bill is to induce or to compel those who are always talking about the advantage of private enterprise to let it work, because it is they, by their private arrangements, their cartels, combinations, trade associations and restrictive practices who are depriving the people of the benefits which, I believe, private enterprise could confer on them. Instead of this Bill being an extension of State socialism, it is the very reverse. It is a Bill designed to ensure that private enterprise will be allowed to function properly.
Many Senators appear, however, to be under a complete misapprehension as to the powers given either to the Minister or the fair trade commission  by the Bill. These powers have been described as drastic, unprecedented and liable to cause a complete disorganisation of trade. The only power the commission has under the Bill is the power to hold an inquiry and make a report following on the inquiry. It has no other power whatever. It cannot interfere in any trade; it cannot arraign any trader as a criminal before it, as Senator McGuire suggested; and it cannot condemn any trader without being heard, as he alleged. It can hold an inquiry into the operation of restrictive practices and report on the nature and consequences of these practices.
That report, when it is received by the Minister, is published to the Oireachtas and no action can follow from the inquiry until the report has been published, and then, if the Minister decides it to be necessary, he makes an Order, an Order based upon the report of the commission relating to the matter which the commission investigated, an Order directed towards ensuring the elimination of practices which the commission decided were anti-social or undesirable. Even that Order has no effect unless the Houses of the Oireachtas decide to confirm it by a Bill and the Houses of the Oireachtas are sovereign in this regard. If they decide that the public interest requires that an Order of that kind should be made the law of the land, it settles the question of public interest. There is no longer any question of a conflict of opinion in that regard. The opinion of the people of the country in that matter is settled by a majority vote in the Dáil and Seanad.
Senator O'Donnell is completely wrong when he talks about the extraordinary powers given to the Minister —this power to write into an Order any provision he thinks fit. The Minister could spend the rest of his life thinking of provisions; he could lie awake at night trying to devise new provisions; and he could slip secretly off to the Kremlin and get their advice as to the provisions he might insert in an Order in order to destroy private enterprise—and the effect would be nil.  Nothing would happen as a result of the making of that Order, until the Parliament of the country decided that an Order of that kind was necessary and should be confirmed and declared it to be the law.
Mr. Lemass: It is often much harder to convince my own Party of the desirability of a particular course than to convince the Houses of the Oireachtas subsequently. If their examination of the proposal is to be the safeguard, it will be a very effective safeguard. Everybody knows that Governments in this matter do not try to move in advance of public opinion. They have to feel that they can convince the ordinary man and woman of the country that the course they are taking is reasonably designed to serve the general national interest, and, if they do not succeed in doing that, they are soon replaced by another Government.
It is not true, as Senator Douglas suggested, that the commission is only required to give an opinion. It has to do something more than give an opinion—it has to ascertain the facts relating to a particular restrictive practice in any trade, but, having ascertained the facts, it has to give its opinion whether these restrictive practices have operated, are operating or might conceivably operate to the public detriment. That opinion, no doubt, will be influenced by the views expressed to them by those who have been supporting the practices or those who have been the victims of the practices, or any members of the public who may have come in contact with them. Neither the Minister nor the Oireachtas is bound to accept the views of the commission. If they think that the commission was misled or recommended courses of action which  were impracticable or not regarded as necessary, then the Minister, subject to his feeling confident that he can justify that course to the Dáil or Seanad, can refuse to make an Order and, if he does make an Order, the Oireachtas can still refuse to confirm it.
Objection has been taken to the proposal that the commission should be empowered to hold an inquiry through the medium of one member only. The Bill does not provide, as Senator Hayes suggested, that an inquiry will be held by one member only. The commission may decide, however, and is empowered to decide, to hold an inquiry by one or more of its members, and the only purpose of putting that provision in the Bill was to offer an opportunity of more expeditious action in relation to minor investigations.
I am quite certain that any intelligent commission will decide that an inquiry into some matter of general interest such as the distribution of petrol or other practices in trades which can have widespread repercussions must be held by all the members of the commission, but it is desirable to frame the legislation so as to make it possible for the commission to have two or three inquiries proceeding simultaneously when they are not of a complicated character or are not widespread in their effects. The report which will be made to the Minister and published to the Oireachtas will be the report of the whole commission. The function of the member holding the inquiry will be merely to ascertain the facts. The report and recommendations of the commission will be based on the outcome of the inquiry but it will be made by the whole commission.
Mr. Lemass: The power of adding a temporary member was to permit of  the possibility of a person with specialised technical knowledge being added to the commission for the purpose of a particular inquiry. It is inconceivable that that power would be used for any other purpose. There was unlimited power to add temporary members as the Bill was introduced in the Dáil. The rather fantastic suggestion that the Government might want to pack the commission by putting on a very large number of temporary members caused me to accept an amendment to confine it to one member at one particular time. The idea was to give something in the nature of a technical assessor to deal with matters in relation to a trade in respect of which knowledge and experience would be an advantage.
Senator McGuire also said something else which indicated a misunderstanding of what was intended. He said that traders would be arraigned before the tribunal and he urged that they should be allowed their costs if, in fact, the tribunal acquitted them of anti-social practices. No individual or no organisation would have the right to arraign a trader or group of traders before the commission. The commission decides whether an inquiry is necessary. An individual or a group or a public body may urge on the commission that an inquiry is necessary but whether the inquiry is to be held or not is a decision of the commission and presumably the commission will not decide to hold an inquiry unless there is prima facie evidence that it is required and that there are undesirable restrictive practices in operation. Therefore, it seems to me that Senator McGuire's criticism of the Bill in that regard was the result of a misunderstanding of it.
The Bill provides that, when the Minister has made an Order, a confirming Act has to be submitted to the Dáil and Seanad. That Act, I contemplate, will be similar to those passed from time to time imposing customs duties under the Emergency Imposition of Duties Act. It is not intended to nor did I contemplate that the Orders themselves should be subject to amendment in the Dáil or Seanad. The Dáil or Seanad would  have the right to revoke the Order if they thought it was undesirable, but the general aim was to ensure that the debate in each House would be confined to the Second Reading of the Bill, that each Bill would be a one Stage Bill designed to maintain the power of the Dáil to confirm or annul but not to give the power to amend.
The Bill could have been framed as other Bills were framed to give the Minister power to make Orders following on the receipt of the report of the inquiry which might be annulled by a resolution in either House, but I came to the conclusion that these matters were of such considerable importance they might affect in a definite way so many things in the community and that there should be a positive act of confirmation. I think it would be foolish to provide for a detailed reexamination of the Orders by the Houses of the Oireachtas much less to provide, as Senator Hayes suggested, for joint committees to examine them.
No Order will be made until there has been a public inquiry, until the report of that inquiry has been formally published in a report to the Oireachtas and until the Minister concerned, having studied that report, has decided to make an Order. It would be an unnecessary complication of procedure at that stage to have a further examination of the whole position.
Mr. Lemass: No. It will not come into effect until the House has confirmed it. I want to quote an old Irish proverb: “There is no sense in keeping a dog and barking yourself.” What is the purpose of setting up a special body with special powers which will conduct an inquiry and publish a report if there is to be another inquiry here later? It is on the basis of that inquiry we should act rather than to go over the whole ground again.
Mr. Lemass: The Senator's indignation at this Bill might have been conceivably more allayed if he had read it with greater care. There is no question of an appeal. Nobody has committed an offence until an Act is passed. There is no question about the right of appeal. If somebody is charged with the offence of doing something which is prohibited by an Act and is convicted in a court, then he has all the rights of appeal under the law which he has in respect of any other class of offence. At that stage the court has to decide whether a specific provision of a specific law of the Oireachtas has been contravened. If, on that question of fact, the court finds him guilty he is entitled to appeal and to keep on appealing so long as he has money enough to enjoy the process. Senator O'Donnell's observation seems to be based on the same misunderstanding as Senator McGuire's criticism, a misunderstanding as to the procedure prescribed by the Bill. A trader or an association of traders commit no offence until a Bill has been passed through both Houses of the Oireachtas declaring some practice of theirs to be an offence.
Mr. Lemass: He has, of course. Once the Bill is passed it is the law. He has no right to go to the courts and ask whether the Oireachtas should have passed this law. That would be making a sort of super-parliament out of the courts. Once we have declared what the law is, and the trader is charged with breaking that law, he has the right to appeal from any decision of any court.
Mr. Lemass: He is only guilty if the court decides he is guilty. Senator  O'Brien said that, outside this Bill, there are a number of trade restrictions, protective measures, public monopolies, trade union regulations and in the services of banking, insurance and the various professions. That is all true, I think. Where we imposed protective duties and restricted competition in trades thereby we did so because, in our wisdom, we thought it was in the general public interest to do so. There may be, and frequently, there is a question as to whether the protective measures should be maintained or modified, but any decision to be taken in that respect has got to be taken in the Houses of the Oireachtas, where the original decision was made. We do not want a commission to tell us what the public interest is in matters of that kind.
Similarly, we have to be allowed to decide whether it is in the public interest to establish a monopoly and to give some monopolist organisation like C.I.E. the powers necessary for the conduct of particular services; then we have done so because we decided that the public interest was being served. It would be foolish to have investigation of the justification for that monopoly by an outside commission, and, if that monopoly is to be withdrawn or to be weakened in any way, it has to be done by amending legislation, and that is our job.
With regard to trade unions, it is quite true that they impose restrictions in many trades, but again the law of the land says that trade unions shall be allowed to operate and shall enjoy certain privileges, and trade unions are defined in that law as bodies established for the purpose of imposing restrictions on the employment of workers and in their relations with their employers. So far as the law of the country is concerned, we sanction the operation of these trade unions for the express purpose of imposing restrictions in various trades. It may be that some of the restrictions are undesirable in our opinion. There are many restrictions of that kind which operate in particular trades which, while they protect the interest of trade union members, may be detrimental to the  interest of the community as a whole, or even of other trade unions. As far as trade unions are concerned, it is quite clear that they are in a special position. These trade associations with which this Bill is concerned are not sanctioned by law to operate restrictions, while trade unions are. If there is to be withdrawal of or limitation of trade unions' powers, it has to be done by amendment of the Trades Unions Act. In my view, that is not a suitable matter for consideration by the type of organisation that we are proposing to establish under this Bill.
With regard to banking, insurance and other services, I decided not to extend this Bill to cover services primarily because I had received no complaint of the operation of restrictive trade practices in them. There may have been other reasons as well—certain legal difficulties which would have arisen if we attempted to extend this Bill to cover them. The only case where I have received a definite complaint of the operation of restrictive practices in relation to services concerned the provision of hire-purchase facilities, and the Bill has been extended to cover services ancillary to the distribution of goods. I have often received complaints from individuals that the banks would not increase their overdrafts or refused them overdraft accommodation, but whether these were restrictive practices or not is another question. In any event, the laws which we have already passed relating to banking and insurance give us adequate safeguards against the development of undesirable practices in these businesses, and if these laws require amendment it is open to us to do it.
In the case of professions, we have enacted laws to confine the profession of medicine to those qualified in a particular way. The law also confines the practice of dentistry to those who are qualified in accordance with certain regulations. Wherever public interest is involved, we have never hesitated to pass legislation to restrict practice in these professions to the people who are qualified to do so.
There is one matter I should particularly like to deal with, because it is  one of general interest. Senator O'Brien asked why we are legislating to exclude members of the Dáil and Seanad from membership of statutory boards and companies. That is something upon which the practice of this State has changed over the course of years. In earlier enactments no such prohibition appeared, and from time to time members of the Dáil and Seanad have acted as Government-appointed directors upon statutory boards and various statutory bodies. The experience over the years has, however, suggested that it was in the public interest that the practice should be changed and I understand that the changed practice has met with the general approval of almost all Party leaders in the State. Members of the Dáil and Seanad are politicians—I am not using the term in any offensive sense——
Mr. Lemass: ——and people with political affiliations of one kind or another. The essential characteristic of a politician is that he is approachable, and a politician who is not approachable will soon cease to be an active one. It is not desirable that members of the fair trading commission should be regarded by the public as being approachable in the sense that a member of the Dáil or Seanad is approachable. No politician, no matter how tenuous his connection with his Party may be, is completely unconscious of the possible Party political effect of any course of action he may take. It is quite likely that some of the reports from this fair trading commission will have political effects in a Party sense and may be regarded as good reports, designed and framed with a very clear appreciation of the public interest, or else may be regarded in the contrary sense by groups of citizens, often influential groups, whose particular interest would be adversely affected by their appearance.
For a number of reasons it is undesirable that we should have politicians or persons regarded as politicians on bodies of this kind. Even if we could  pick from the Dáil or Seanad people who would be completely fearless in the discharge of the duties attached to the office, and completely objective in their approach to these duties, they would still be suspect in the public minds as being capable of being influenced by their political associations or by the possible political consequences of what they recommend. Furthermore, members of the Houses of the Oireachtas should not be put into the position in which they would be and could be required to defend in the Dáil or Seanad the actions of the body of which they are members. It is inevitable that, if there was a member of the Seanad attached to the fair trading commission, or any other public body of a similar kind, he would find himself required to defend the action of that body or, possibly, to indicate that he was not in agreement with some action upon which the majority of his colleagues decided. He would be open to be questioned in the Dáil or Seanad concerning the motives for taking a particular course of action. He would frequently be regarded as being more authoritative on that subject than the Minister concerned, which would hurt the Minister's prestige.
Thirdly, it protects the Government in office from the pressure that might be put upon it to appoint particular members because of the advantages that course would confer on them in the Party sense. I have only to point to the present situation in the Dáil to enable Senators to see how giving the Government power to reward political support in either House by appointment to a well-remunerated position on a statutory body might work. May I say, too, that it is very great protection for a Minister to be able to say to any Senator or Deputy who approaches him for an appointment: “Well, the law says I cannot ...” Even though it deprives the State of the services on these bodies of men who are highly qualified by character and experience to occupy these posts, nevertheless, the weight of evidence and my experience supports the retention of this bar in Bills of this kind.
Mr. Douglas: I suggest that this is a Bill in connection with which it would take time to consider amendments and that we should take the Committee Stage next week and leave the Report Stage over so that the Minister might have an oportunity of considering any amendments that are put forward.
Mr. O'Donnell: I was going to suggest that as there does not seem to be any urgency about this Bill and that as no case has at yet been proven for it, we should leave the Committee Stage over until after Easter.
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