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Restrictive Practices Act, 1972
THE effect of this Act which became law on l^th
June 1972 is to enable the Minister for Industry
and Commerce to set up the Restrictive Practices
Commission which will exercise powers comparable in
many respects to the existing Fair Trades Commission.
The powers of the Commission extend to investigation
of the affairs of the professions and in the exercise of
their functions the Commission are to have regard to
unfair practices listed in the third schedule to the Act.
These are as follows:
Unfair practices
Any measures, rules, agreements or acts, whether put
into effect for (or intended to put into effect) by a person
alone, in combination or agreement (express or implied)
with others or through a merger, trust, cartel, monopoly
or other means or device whatsoever, which—
(a) have or arc likely to have cffect or unreasonably
limiting or restraining free and fair competition,
(b) are in unreasonable restrait of trade,
(c) have or arc likely to have the cffcct of unjustly
eliminating a competitor,
(d) unjustly enhance prices of goods or charges for
services or promote unfairly at the expense of the
public the advantage of suppliers or distributors of
goods or of persons providing services,
(e)
sceure or are likely to secure, unfairly or contrary
to the common good, a substantial or complete
control of the supply or distribution of goods or
any class of goods or the provision of services or
any class of services.
(f) without just cause prohibit or restrict the supply of
goods or the provision of services to any person or
class of persons or give preference in regard to the
supply of goods or the provision of services,
(g) restrict or are likely to restrict unjustly the exercise
by any person of his freedom of choice as to what
goods or services he will supply or provide or as to
the area in which he will supply or provide goods
or services,
(h) impose unjust or unreasonable conditions in regard
to the supply or distribution of goods or the pro-
vision of services,
(i) without good reason exclude or are likely to exclude
new entrants to any trade, industry or business.
(j) secure or arc likely to secure unjustly the territorial
division of markets between particular persons or
classes of persons to the exclusion of others or
(k) in any other respect operate against the common
good or are not in accordance with the principles
of social justice.
Power to enter premises
The Council made representations to the Minister for
Industry and Commerce on the Bill in general before
it became law. Some but not all of the recommendations
and proposals of the Council were included in the Bill
as passed. The Council were particularly concerned with
the powers conferred on the Examiner appointed by the
Commission under Scction 15 for the purpose of obtain-
ing any information necessary for the exercise of the
Examiner or any of his functions. An authorised officer
will be entitled to enter and inspect premises, obtain
information, and inspect and take copies from books,
extracts and documents and records. The Council are
of the opinion that these provisions if implemented
might enable the authorised officer to obtain confidential
information regarding client affairs. Representations to
this effect were made to the Minislei for Industry and
Commerce.
Right
of appeal
to the High Court
Section 15 (3) provides that the owner of premises which
an authorised officer proposes to enter may apply to the
High Court for a declaration under the Section. Where
the owner of premises to whom an authorised officer has
made a requirement under the Scction refuses access or
refuses to comply with the requirement the owner has the
same right of application to the High Court. The Court
having heard the evidence and any representations made
by the Examiner may at its discretion declare that the
exigencies of the common good do not warrant the
exercise by the Examiners of the powers conferred on
them by the Section. The Examiner or the authorised
officer will thereupon be prohibited from exercising
the powers.
It seems unlikely that the Restrictive Practices Com-
mission or any of its authorised officers would seek to
inspect confidential files, documents or records in
solicitors' offices. If they were to act otherwise the
solicitor would no doubt invoke the right of application
to the High Court and would in this respect have the
approval and support of the Society in an appropriate
case.
Statements during debate in Oireachtas
On the second stage of the Bill in Seanad Eireann Mr.
Michael O'Higgins stated " So far as my profession of
solicitor is concerned it is probably unnecessary to point
out that the work a solicitor undertakes is absolutely
confidential between the solicitor and his client. So far
as the medical profession is concerned there is also the
question of complete confidence as between the medical
man and his patient. Under Section 15 of the Bill the
Examiner is entitled to authorise any person in writing
who then becomes an authrised officer to require infor-
mation about any particular field in which the Examiner
is conducting an investigation. Not only is he entitled
to require that information be given but he is entitled
to inspect books and records; not merely is he entitled
to inspect books and records but he is entitled to take
copies of extracts of any such books, documents or
records. This is a matter which troubles me on the
question of confidential relationship which exists so far
.as my professsion is concerned and I feel that the
medical profession would feel the same way and which
the members would insist absolutely in maintaining.
Solicitors in many matters can give proper service to
their clients only provided it is known, recognised and
accepted by everyone that their relations with clients,
their instructions from clients, their advice to the clients
and their discussions with clients are to be regarded as
absolutely confidential. The same could be said of the
lOther branch of the legal profession, as well as the
medical profession. There is a safeguard of sorts written
into Section 15 but I do not think it meets the difficulty
by providing that a person who is served with a notice
by the Examiner may apply to the High Court io get
a declaration to the effect that the investigation should
not be carried out by the Examiner."
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