Thursday, 5 April 2007
Consumer Protection Bill 2007 [Seanad Bill amended by the Dáil]: Report and Final Stages
This is a Seanad Bill that has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister of State will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed grouping in the House. Senators may contribute once on each grouping. The only matters that may be discussed are the amendments made by the Dáil.
The first grouping deals with amendments Nos. 1 to 3, inclusive; 10; 12 to 19, inclusive; 22 and 23; 30 to 35, inclusive; 41 to 45, inclusive; and 51. These are technical drafting amendments proposed on the advice of the Office of the Parliamentary Counsel in order to remove possible legal uncertainty, ensure consistency between different sections of the Bill, or correct grammatical or typographical errors.
The second group of amendments amends the Central Bank Act 1942 to make the enforcement of the unfair commercial practices provisions of the Bill a statutory function of the bank and the consumer director of the financial regulator in the case of regulated financial service providers.
The amendments provide the regulator with the necessary powers of investigation regarding breaches of the provisions of the Bill. The amendments include particular provisions specifying the financial regulator as a body with whom the agency shall enter into a co-operation agreement as provided for in section 21 of the Bill, as well as allowing for the disclosure of certain information between the regulator and the agency.
The Central Bank Act 1942 is further amended to assign to the financial regulator parallel functions given to the agency under the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995. The effect of this amendment will enable the financial regulator to apply to the High Court for orders prohibiting the use of terms in contracts for financial services which the court adjudges to be unfair. Specific provision is also made in the amendments to ensure that there is no duplication of activities on the part of the financial regulator and the agency and further to prevent any person being subject to enforcement action by more than one party to a co-operation agreement.
These amendments were introduced having regard to the financial regulator's particular expertise in regulating financial service providers and also take cognisance of the specific statutory responsibility given to the financial regulator to promote consumers' interests in the financial services sector. The amendments set out the basis on which the agency and the financial regulator shall work together to ensure that consumers of financial services can enjoy the important protections provided for in the Bill.
These amendments involve changes to various provisions in Part 2 dealing with the National Consumer Agency. Amendments Nos. 5 and 48 involve new provisions dealing with the agency's role in promoting quality assurance schemes. They arose from an amendment proposed by Senator Coghlan that had merit and that the Minister, Deputy Martin, undertook to consider.
Amendments Nos. 6 and 7 concern the position of the chief executive of the agency. Amendment No. 6 provides that, notwithstanding the restrictions of section 14(8), persons who cease to be the chief executive officer are not precluded from holding employment with or acting as consultants to public bodies, Ministers or Departments. Amendment No. 7 sets out the basis on which the chief executive officer will give evidence before committees of the Oireachtas. It provides that the chief executive officer will, when requested, give evidence before such committees, the business of which includes the examination of consumer protection policy, in respect of the general activities of the agency.
Amendments Nos. 20 and 21 remove the restriction that records, documents, etc. obtained by authorised officers in exercise of their powers under section 30 may only be retained for six months. Similar restrictions in the legislation governing the activities of the Competition Authority and the Office of the Director of Corporate Enforcement have caused difficulties to both organisations and it was not considered prudent to include them in this Bill.
The amendments in group 4 introduce new provisions concerning no discrimination and transparency in terms of the method chosen by customers to pay for goods and services. The introduction arose from an amendment proposed by Senator Cox on Committee Stage, which the House will recall the Minister undertook to consider.
The principal new provision in the amendments prohibits traders from imposing additional charges by reason of a person paying for goods or services by means of any of the relevant methods prescribed in the amendments — cash, credit card or direct debit — as distinct from any other relevant method. The amendments provide that an additional charge is deemed to have been imposed if the price charged by the trader for a product where a customer uses one of the relevant methods is greater than the price charged for the product where one of the other relevant methods is used. The amendments also empower the Minister to prescribe other methods of payment as relevant methods for the purposes of the Act.
The other main provision introduced by these amendments provides that traders who impose additional charges by reason of method of payment and who, by virtue of only accepting payment by one method or by imposing the same charge in respect of different relevant methods of payment, fall outside the scope of the no discrimination provision referred to earlier must include those additional charges within any statement or representation of the price of goods or services.
Senators may be aware that the introduction of these amendments has given rise to concerns among a number of traders, especially traders in the travel trade. While I am mindful of the concerns expressed by those traders and their trade associations, I am satisfied that, on balance, the proposed provisions have considerable merit, especially from a consumer protection point of view.
The amendment that will allow organisations that only accept one type of payment to be excluded from the prohibition on surcharges will also allow bodies such as Ticketmaster, which sells many tickets via the Internet, to make additional credit card charges. I am not sure I understand the amendment correctly.
I appreciate Senator Cox's point because she initiated this amendment. She prepared a Private Members' Bill, but she achieved more by including the provision in this Bill. I hope the response fulfils what she set out to achieve, namely, to ensure prohibitive charges on credit cards will not be allowed.
I expressed that concern on a previous Stage. Regarding the travel trade's concerns, of which I learned since we last debated this Bill, I accept what the Minister of State is trying to achieve, but I do not want to do something that could diminish or wipe out a number of our valuable travel agencies in various towns. By forcing them into awkward trading situations, this provision could obliterate them.
Senator Cox's point relates to the new section 49, which is being provided in amendment No. 27. The import of the section is that traders who accept payments by one method only would not have been captured by the new section 48 which seeks to equalise the methods of payment. The new section 49 imposes an obligation on the trader to be transparent in respect of payments. For example, if there is a surcharge for a payment made via the only acceptable method, the trader is obliged to include it in the advertised price.
The travel trade has made its concerns known to us all. It points out that it incurs an additional cost due to the surcharge imposed when payment is made by credit card. The Minister and the Department have taken account of the points made, but it did not prove possible to address them in section 48 or section 49 without diminishing the consumer protection inherent in the new sections.
Not only is it Government policy, there is significant agreement on the need to move to a cashless society. There are costs associated with payments by cash for the State and others. The Minister continues to examine the means open to him to ameliorate the effect on the travel trade in the short term, but it was not possible to make a provision in the Bill that would meet the trade's concerns.
I thank the Minister of State for clarifying that point. The Bill has been strengthened by these provisions and I welcome that the Minister, the Minister of State and the Department's officials took this matter on board in a proactive manner. The Minister of State might allude to when the regulations will be put in place.
Consumers who have faced unfair charges that create additional profit for providers will be grateful for the Bill. The real issue is the strengthening of the National Consumer Agency. The challenge for society is to ensure we continue to force service providers to provide good value for money and to protect consumers. I thank the Minister of State and the Minister for taking on board my concerns in a positive manner and for following through on the commitment given to the Seanad, namely, to bring the amendment to the Dáil and to include it in this legislation.
This is a substantive amendment to Part 3 not relating to the payment method provisions already discussed. This amendment is a reworking of an amendment tabled by Deputy Hogan to section 57 of the Bill as passed by the Seanad. It supplements the requirement on grocery retailers under the section to allow any person purchasing a non-prepacked food product to weigh the product or observe its weighing by specifying that this must be done in a manner that allows the person to see the reading of the weight and to be informed of the price before paying for the product.
Amendment no. 37 is the only substantive amendment to Part 5 that is not one of the amendments relating to payment methods and the Financial Regulator which have already been discussed. It seeks to close off a possible loophole that might have enabled traders to evade the obligation on them under section 66 of the Bill, as passed by the Seanad, to establish the truth of a factual claim in an advertisement they had commissioned.
Amendments Nos. 47 and 50 introduce new provisions in the area of product safety. They will make it an offence to distribute, sell, offer for sale or supply a product that is the subject of a direction by the agency prohibiting the placing of that product on the market, requiring the withdrawal of the product from the market or imposing other restrictions on placing the product on the market. Any such direction can be issued by the agency under a range of statutory instruments which govern general and specific product safety, as set out in Schedule 7. The statutory instruments transpose EU Council directives relating to product safety, as set out in Schedule 8. The amendments will add to the agency's enforcement powers in the area of product safety, thereby helping to ensure that consumers can have greater confidence in the safety of the products they buy.
I thank the Minister of State, Deputy Killeen, and his ministerial colleague, Deputy Martin, for following through on the commitments they gave the House on the Bill, as Senator Cox has said. I thank the Minister of State and his officials for tidying up and closing certain loopholes. We all agree that the Bill has been improved somewhat as a result. I am glad to hear the Minister of State say that a small outstanding issue will be the subject of continuing attention. Perhaps a resolution will be found — it was not possible to do that within the scope of the Bill, as the Minister of State said. It would be positive if the genuine concern of the travel trade could be addressed. I accept the word of the Minister of State on the matter. In general, the House is happy with the thrust and aims of the Bill. I compliment the Minister of State and his officials on it.
I congratulate the Minister, Deputy Martin, the Minister of State, Deputy Killeen, and their senior officials who have put a great deal of work into the Bill. It is appropriate that worthwhile amendments, especially those proposed by Senator Cox, who has done some pioneering work on excessive credit card costs and charges, have been recognised by the Minister and the Minister of State. They were prepared to amend the Bill in the Dáil before bringing it back to the Seanad. When I was a Minister of State at the Department of Industry and Commerce, I was always pleased to benefit from the wisdom of Members of the Seanad and to include the amendments they proposed, where possible. I remember the former Senator Kennedy from Limerick, who was very involved in legislating and put forward numerous worthwhile amendments. It is encouraging to those of us who are coming to the end of our terms — and hopefully returning for another — that Ministers are prepared to accept amendments. I thank my opposite number, Senator Coghlan, who has been most helpful, encouraging and supportive of useful legislation as Fine Gael's spokesman for enterprise, trade and employment. I wish him well in the forthcoming elections.
I thank the Minister of State, Deputy Killeen; the Minister, Deputy Martin; and their officials in the Department of Enterprise, Trade and Employment for the open and proactive manner in which they have taken on board the thoughts of Senators on credit card surcharges. They agreed it was not right that companies were allowed to impose additional charges on people who use credit cards to do their business over the telephone, on the Internet or in person in shops and offices. I thank the various consumer agencies who contacted me to support what I was trying to do in this campaign. In particular, I thank Mr. Pat Farrell of the Irish Banking Federation, who ensured that I was fully briefed on the views of the federation's member organisations. I am pleased that the various interests have committed to try to move towards a cashless society, which is important from a security point of view if we are to protect the welfare of people in their everyday lives.
I thank the Minister of State for taking on board the amendments which were proposed by Senators on Committee Stage, which is always helpful. The Minister of State introduced proposals in the Dáil on foot of our suggestions, as he said he would do, and then brought the Dáil amendments back to this House.
On behalf of the Minister, Deputy Martin, and on my own behalf, I thank Senators for their co-operation and support in passing this legislation. I also thank the staff of the Office of the Chief Parliamentary Counsel and the Office of the Attorney General who did a huge amount of work in this regard. I compliment the staff of the Department of Enterprise, Trade and Employment, in particular, on the work they have done on this legislation, which is the first major domestic consumer Bill to be introduced for over a quarter of a century. I hope the Bill, which draws together ten separate legislative provisions, will make this sector more accessible and easier to understand for all participants in the market. It will go a long way towards giving Irish consumers a modern, progressive consumer protection code. The Bill's provisions on unfair, misleading and aggressive commercial practices will give consumers an updated and comprehensive range of protections.
I thank Senators, as well as my colleagues in the Dáil, for suggesting ideas that we were able to incorporate in this legislation. The spirit of the Oireachtas dictates that good ideas should be incorporated in legislation, regardless of where they come from. Senators Cox and Coghlan asked when the section 48 provisions will be implemented and will come into effect. The Minister will consider every means available to him to lessen the negative impact that might be felt by the travel trade. He will see what he can do in that regard. This is not the last legislation I will present to the Seanad before the upcoming elections. I expect to return to the House on 26 April next with another Bill. I will see Senators on that occasion.