home » media centre » press releases

Drafting flaw leaves key section of Consumer Protection Act inoperable

Issued : Tuesday 18 March, 2008

Legal advice available to the Labour Party suggests that a serious drafting error has rendered a key section of the Consumer Protection Act unworkable and prevented any prosecution from being taken under that section.

The Consumer Protection Act finished its passage through the Oireachtas in March 2007. It provided, among other things, for the establishment of the National Consumer Agency on a statutory basis and created a number of new offences which were supposed to provide additional protection for consumers against sharp practices.

While there have been a number of prosecutions for minor offences my legal advice is that a serious drafting error in a key section of the Act means that this section cannot be used to pursue offenders. The Minister for Enterprise, Trade and Employment has confirmed in reply to a recent parliamentary question that no prosecutions have been taken under the Section in question.

Section 83 of the Act says that 'if a person is indicted for an offence under this Act, the District Court may try the person summarily......'. This is a form of words that is not used in any other Act on the Irish Statute Book and suggests that whoever drafted the Section may not have been very familiar with Irish law.

The effect of this Section as drafted is that a person would have to be the subject of an indictment, which can only happen after the case has left the District Court and gone to a higher court. Thus the idea that, after an indictment, the District Court could try the case (and not send it forward) is contradictory and inoperable. The section should have referred to a person being "charged" rather than "indicted" because a person cannot be "indicted" in the District Court. The implications of the error are that certain key consumer protection offences cannot now be validly prosecuted in the District Court.

My advice is that the drafting flaw is fatal to the prosecution of the pyramid scheme offence in the District Court under the Consumer Protection Act, and would also appear to prevent the prosecution in the DistrIct Court of a number of other offences including misleading commercial practices; aggressive commercial practices; prohibited commercial practices; and contravening maximum prices order.

This is such a fundamental flaw that it is difficult to understand how it could have got through the Office of the Parliamentary Counsel. However, it is now important that the gap in the legislation be closed as soon as possible. I intend to bring a Private Members Bill to the Seanad on its resumption to do this.