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TRADE AND INDUSTRY PORTFOLIO COMMITTEE
24 March 2005
NATIONAL CREDIT REGULATIONS: BRIEFING
Chairperson: Mr B Martins (ANC)
Document handed out:
PowerPoint presentation on National Credit Regulations
Draft National Credit Regulations
The Committee was briefed on the National Credit Regulations. The closing date for public comments was 25 March 2006. Parliament had passed the National Credit Bill in December 2005 and the President signed the Bill into law in March 2006. The National Credit Act would come into effect on 1 of June 2006. The Regulations in terms of ection 73 of the Act were not included in the current Regulations. The Regulations dealing with the establishment of the National Credit Register were also not included.
The requirements for registration as a debt counsellor included experience and competence. One should have a minimum of two years' experience in any of the following fields: legal or paralegal services, consumer protection, complaints resolution or consumer advisory service or accounting or financial services and demonstrate ability to manage own finances.
The Regulations dealt with the following issues:
- Maximum periods for which consumer credit information might be displayed.
- Standards for the maintenance and retention of records.
- Prohibited information.
- Purposes for which information might be used.
- Standards for the submission of consumer credit information to a credit bureau
Issues raised by the Committee included the following:
- Whether there were mechanisms to ensure that credit providers and bureaus would comply with the law.
- That the criteria for registration as a debt counsellor were too restrictive and would exclude a lot of people.
- The maximum interest rate for developmental credit was too high and would not contribute to access to credit and moving people from the second economy to the first economy. A member of the Committee felt that the 48% limit in relation to short term loans was too low. He was of the view that credit had to be bought at the prevailing price.
Dr J Erasmus (DTI: Director) Ms P Setau (MFRC: Manager- Education and Communication) and Ms S Fontes (MFRC: Legal Advisor) appeared on behalf of the Department. Dr Erasmus made the presentation. (See document attached). He said that the purpose of the meeting was to brief the Committee on the Regulations. The closing date was 25 March 2006. Parliament had passed the National Credit Bill in December 2005 and the President signed the Bill into law in March 2006. The National Credit Act would come into effect on the 1st of June 2006. The Regulations were published for comment on 15 February 2006 and the final Regulations would be published in April 2006. The Regulations in terms of section 73 of the Act were not included in the current Regulations. The Minister had six months from the effective date of the Act to publish Regulations for the purposes of section 73. The Regulations dealing with the establishment of the National Credit Register were also not included. These would be made at a later date. The National Credit Regulator would come into operation on 1 June 2006 and the Tribunal three months after that.
The Chairperson said that the deadline placed on the Regulations was tough on Committee members. The last day for comment was the 25th of March 2006 and the Committee had only received them of the 24th of March. The Committee needed time to read and digest the Regulations if it was to do justice to them. The question was why they were not forwarded to the Committee days before the meeting.
Dr Erasmus said that the closing date for public comments was 25 March 2006. The Committee had an ongoing relationship with the Department and the Department would be open for any comments from the Committee until the Regulations had been finalised.
Dr M Sefularo (ANC) said that the requirements for registration as a debt counsellor included experience and competence. There was an intention to replace Magistrates Offices as providers of counselling. The pool for counsellors was likely to be the unemployed graduates and matriculants. There was a requirement that one should have a minimum of two years' experience in any of the following fields: legal or paralegal services, consumer protection, complaints resolution or consumer advisory service or accounting or financial services. This would exclude a number of potential debt counsellors. The issue about ability to monitor finances was another matter. Most young people were in trouble in relation to their credit status. A lot of them had complained that they were kept out of employment due to adverse credit records. Perhaps there was a need to be softer on the requirement for previous experience and at least require a debt-counselling course and the minimum academic qualification. The ability to manage own finances should be a disqualifier and not a criterion for entry because it would exclude a lot of people.
Mr S Rasmeni (ANC) agreed that the deadline was short but was happy that the Committee would be free to make any comments until the Regulations were passed. The Committee would need to conduct public hearings so that it could hear more on the Regulations without nullifying the process of the Department. The Committee had its own processes that had to be followed. He could not see how the Regulations had dealt with the issue of amnesty that was raised by members of the public. The Department had said that it was the first time that credit bureaus would be regulated but this did not mean that one should lose objectivity in regulating them. The purposes for which consumer credit information could be obtained and used included considering a candidate for employment in a position that required trust and honesty and entailed the handling of cash or finances. A lot of issues had been raised about this issue during public hearings. The information could be used to investigate if the person had been involved in fraud, corruption or theft. It was not clear who would conduct the investigation.
Dr Erasmus replied that the issue of amnesty was dealt with in section 73 of the Act. The compromise was data verification, cleansing and removal of certain data. The process of verifying, cleansing and removing data would start as soon as the Act comes into place. The Minister would initiate a consultation process to look at the social impact that the credit information possessed by credit bureaus might have on consumers and what type of information could be removed. For instance, all incorrect information would be removed and information in relation to debts less than R100 and information older than three years might be removed. All these issues would be determined through a consultative process.
He said that the investigation into fraud, corruption or theft would be done by the South African Police Services and not just by anyone. There was a long debate about using credit information in considering whether to consider a candidate for employment in certain positions. The Department did not want the fact that a person slipped up a few years ago and was listed on the credit bureau to count against them for the rest of their lives. The industry had requested that it should be allowed to do a credit check on people who had applied for positions that dealt with money but only with the consumer's consent. The whole idea was that a people should have been able to handle their own finances before they could handle those of other people.
Dr E Nkem-Abonta (ANC) asked what were the criteria for the disqualification of natural persons from acting as debt counsellors. He agreed with Dr Sefularo that the conditions qualifying as a debt counsellor were too restrictive. He said that he could not qualify for registration if the requirements were to be enforced. He could do the debt-counselling course but the problem would be that he did not have the required two years experience in the specified fields. Professional bodies often insisted on these requirements in order to keep the market to themselves. He was worried that the Tribunal could impose an administrative fine of up to 10% of the respondent's annual turnover during the preceding financial year. 10% of the annual turnover could ruin most of the small businesses. He wondered if this should not be reconsidered. With regard to interest rates, he said that the intention was to make credit more affordable. However, 48% interest limit in relation to short-term loans was too low. The effect of this limit would be that most poor people would not be able to get credit. He suggested that there should be no capping of interest for low amounts. It was important to remove obstacles in the way of anyone who wanted to be involved in the credit market. The market should be allowed to decide the right level of interest rate for small transactions.
Dr Erasmus replied that people who were disqualified from acting as debt counsellors had to notify the Regulator. The 10% penalty was the maximum. This was a sanction and the Department wanted to give the Tribunal some stick with which to keep credit providers in line. He agreed that 10% was big but a small amount or percentage might not have the desired effect. The 10% limit was fixed in the Act and not the Regulations. The Regulations only contained information on how to calculate the annual turnover.
Mr J Maake (ANC) said that race was not included under prohibited consumer credit information. He asked if there was any reason why race still had to be part of the information that could be kept by credit bureaus. He wondered if anything had changed in relation to the retention periods for credit bureau information. It seemed like nothing had changed. He noted that there was a period of five years in relation to payment profile and said that there was a need to start from zero. He asked for clarity on the calculation, levying and capitalisation of interest. The interest rates ranged 20 to 48%. The interest rate limit for developmental credit for small businesses and low-income housing was set at 35% of the amount borrowed and this was a cause for concern. Developmental credit should be looked at in a particular way or else there would a contradiction between the Regulations and the Accelerated and Shared Growth Initiative for South Africa (ASGISA). He asked the presenter to clarify the initiation fees applicable to developmental credit agreements. He also asked for a brief outline of the process of drafting the regulations. What happened after the Department had received public comments? The answer to the question could help explain why there was still reference to some objectionable issues in the Regulations.
Dr Erasmus replied that the Department had initiated a process to draft the regulations after the National Credit Act had been passed. It went through the Act line by line making notes wherever the Minister was required to regulate something. The Department went through six drafts of the Regulations while keeping purpose and objects of Act in mind. There were three sets of focus group meeting engaging different stakeholders wherein the content of the Regulations were discussed. The Department wanted the stakeholders to look at issues that would affect them in an attempt to streamline the Regulations and ensure that the Regulator would be positioned to fully enforce the Act. Department had received some submissions on the Regulations and hopefully more would come in before the closing date (25 March 2006). Most of the submissions that had already come in focussed on the interest rates. Most micro lenders felt that the rates were too low. He assured the Committee that the Department had benefited from the public hearing process. The Committee should not feel that the Department had not accommodated the concerns that had been raised throughout the entire process. The Department was trying to strike a balance between the needs of credit providers and consumers. It could not skew the line because this would not achieve what it had set out to achieve: establishing a properly functioning credit environment in which consumers were protected and had access to credit at the best possible rates.
Ms N Khunou (ANC) agreed with Mr Maake that it seemed that the Department had not taken the Committee's complaints into consideration. She also agreed with Dr Sefularo on the criteria for registration. Most students were given loans whilst still at tertiary institutions and it would be discriminatory if one was to use the credit information relating to such loans against them. She wondered how the Department would deal with the protection of consumer credit information against loss or wrongful alteration. There were syndicates of people who stole other people's identity document and opened accounts using them. How would the Department protect people who were victims of such syndicates? Was the Department working with other Departments on this? Most of our graduates were finding it difficult to obtain employment because of credit bureaux. It was important to sometimes look into the past and how people got themselves into credit bureaus. The question was whether it was necessary to regulate credit bureaus if people would still be unable to get jobs due to adverse credit information. She also asked the presenter to shed more light on the calculation, levying and capitalisation of interest. She wondered if the interest limit would also apply to Khula and the Apex Fund. There was a need for more time for the Committee to go through Regulations.
Professor B Turok (ANC) said that the Regulations were a major advance that should be welcome and that they were still work in progress. Problems would emerge during the implementation phase no matter how much the Committee would tinker the Regulations at this stage. The Committee should keep its eyes open as the process was taken forward. Problems and unintended consequences would arise and the Department should accept this. The key issue was the seriousness with which Department took the Regulations. One could have all the legislation in place but the process could fail should the Department be formalistic and the public see it as tokenism. The Department should show that it was serious and this went beyond the details of each clause. He would have appreciated it if the Department had indicated how it had responded to the concerns raised by the Committee. The statement of consumer rights was at the heart of drafting the legislation and Regulations. The Department should produce statement on how the consumer right would work. One of the problems was that credit providers were selling the data in their possession. It was important to know what each and every credit providers was doing with the information in their possession. The Committee was shocked to find out that banks were circulating information about people without their consent. The Committee and the Regulator should know to whom the information was being circulated.
Mr L Labuschagne (DA) said that Regulations were the practical application of the law. The public had been given an opportunity to comment on the Regulations. The Committee had two choices: either to see the information given to the Department by the public or to conduct public hearings. Clause 19(1) seemed a bit unnecessary.
Ms D Ramodibe (ANC) said that it was not clear if the Department had incorporated the Committee's concern especially around the use of credit information. When looking at the kind of information required from consumers, one might even think that the consumer was in detention and being interrogated. She asked the Department to explain the process of arriving at the interest limit for different transactions. She noted that there was a service fee which was R50 per month for all transactions. She wondered if the service fee was necessary. Perhaps it would have bee better to simply have the interest limit and the initiation fee.
Dr Erasmus replied that at the moment credit providers had different fees that they charged when lending money. The Act had tried to limit the cost of credit. In terms of the Act the cost of credit would be made of three components: interest, initiation fee and a monthly service fee. The initiation fee was the cost that credit provider would incur to initiate the loan. There were other costs that credit providers could levy and these were specifically dealt with in the Act. These costs included the default administration fee. The intention was to have an interest limit for the different categories of transactions. The Department had looked at the current state of play in the market and plotted effective costs of credit today on a graph and then determined a middle ground in the graph. This was done in order to make credit as cheap as possible and at the same time allow lenders to make a living. One could not make the cost of credit too cheap because this could force credit providers out of the market.
He said that the first set of fees that was presented to the Minister was different to the one contained in the Regulations and contained a high interest rate and lower fees lower. The reason for this was to make expensive credit look expensive. After a long process, especially with political stakeholders, it was requested that the interest rate should be lowered and the fees increased. The Department could not tamper with the fees and rates too much otherwise it would have made credit too cheap or expensive. A decision was to make monthly fees the same for all transactions so as to simplify the process. The Department also looked at what would be the best interest cap for the different categories. The most important thing was to look at the risk the lender would run and the risk explained the different caps for different categories of transactions. The interest caps were the maximum rates allowed and the Department did not want the market to go for the maximum. He admitted that there was a risk of the industry charging the maximum rates permissible. The Department would monitor the market extremely carefully and would not hesitate to change the Regulations should the market go for the maximum rates. It was important to ensure competition in the different categories.
The Chairperson said that the Department should take the Committee through the submissions received and responses give to them during the next meeting. The Department should also indicate how it had addressed issues raised by the Committee.
Mr Maake asked what the initiation fee was.
Mr Setau replied that the initiation fee was intended to allow for the recovery of reasonable costs of originating a transaction. This was different from the interest that could be charged. The practice of charging an initiation fee was well established and the Department was of the view that scrapping it would create problems in the market. It would not make business sense for credit providers not to charge the fee.
Professor E Chang (IFP) said that it was important to understand all the costs involved. She was of the view that the Regulations would benefit credit providers. She noted that there was a 35% limit for developmental credit agreements and a 15% of the loan amount initiation fee. This amounted to 50% of the loan and most small businesses could not afford these fees. The risk was the that credit providers would go for the maximum rates they could get. She said that she had never seen a credit provider who was prepared to settle for the less than the maximum fees allowed.
Dr Nkem-Abonta said that Professor Chang wanted credit to get to the poor cheaply. He did not know if the intention was to make credit cheap for anybody. Credit was something to be bought at the prevailing price.
Ms Khunou made an example of a product at a furniture shop priced at R4999. 99. She asked what would be the initiation fee.
Mr Labuschagne was under the impression that the initiation fee was charged monthly. He soon realised that it was a once off payment.
Ms M Ntuli (ANC) said that when buy furniture one would be told that the price was R5000 and the deposit was 10% of the purchase price. She wondered if the initiation fee was equivalent to the deposit that was charged even before interest was calculated. Was it something that was added on top of the deposit?
Dr Erasmus used an example of a person who wanted to buy a fridge costing R5000. The first step would be to identify the category into which such a transaction would fall. The transaction would fall under "other credit agreement" because it was not a mortgage, credit facility or a developmental credit agreement. The maximum interest rate payable would be a maximum of 25%. He hoped that credit providers would not charge 25% interest rate. The initiation fee could start from R150 to R500 plus 5% of the amount in excess of R1000. The amount in excess of R1000 in the example given was R4000. The credit provider would be allowed to charge 5% of the R4000. Effectively this meant that the credit provider would be able to charge R150 as the initiation fee plus R200 from the excess amount of R4000 to bring the total amount to R350. This should be spelt out in the quotation. Consumers would be allowed to pay the initiation fee upfront in cash so that it would not capitalised and no interest would be paid on it.
Mr Maake said that there were some hidden transactions that were put on top of the capital amount. For instance, one would buy a cell phone and there would be an insurance amount capitalised on the original amount.
Dr Erasmus replied that the Act was very clear on what might be capitalised. Insurance premiums might not be added and capitalised at the start of the credit agreement. The insurance might be capitalised annually or monthly depending on the type of the agreement. Things like the initiation and installation fees could be capitalised. At the moment people did not know what were the initiation fees of their transactions. The credit provider would simply state the prize of the product and add other costs on it. The intention of the Regulations was to separate all the different costs. The initiation fee might not exceed a certain amount. A consumer would be entitled to a quotation that spelt out the three basic fees before entering into a credit agreement. Consumers would not be expected to read the regulations.
Dr Nkem-Abonta said that most poor people would not be in a position to pay the fee upfront. They would be forced to have the amount capitalised and pay interest on it over the duration of the agreement.
Mr Labuschagne wondered if the credit providers would not consider the amount as a short term loan and charge 48% interest on it.
Dr Erasmus replied that the interest rate of the main transaction would apply to the initiation fee.
Dr Sefularo said that the fees raised the question whether they were equivalent to the stamp duty which was recently abolished.
Dr Erasmus replied that he was not sure if the fees were equivalent to the abolished stamp duty. However, it would not have been the Department's intention to reintroduce something that had been recently abolished.
Ms Ramodibe asked if consumers were not being double charged. She wondered if paying the service fee and the initiation fee was not equivalent to paying double service fees.
Professor Chang asked if the fees would also apply to developmental credit agreements entered into with Khula.
Dr Erasmus relied that the Act applied to all credit providers. Khula would be subject to the Act if it provided credit.
Mr Maake asked what was the purpose of the initiation fee. Was it a fee that was charged for the handling of the deposit? The answer seemed to be that credit providers would just decide to charge it simply because a consumer was begging for credit. This was as good as stealing or daylight robbery. The Committee's duty was to ensure that no crime was committed. The initiation fee should be thrown out unless its purpose could be clearly explained and established.
Ms Fontes replied that the initiation fee was the cost that the credit provider incurred in extending the credit to a consumer. For instance, there were costs in relation to credit checks and evaluation fees in relation to the purchasing of property. Such costs could only be recovered if the two parties had entered into an agreement. It was not really money that the credit provider would pocket but money that the credit provider had used in order to get the credit. This would include payment to lawyers to draft the mortgage bond, for instance.
Dr Erasmus replied that there was a difference between initiation and monthly service fees. Credit providers normally incurred specific cost relating to the management of the account. They would be allowed to charge monthly fees for managing the account and the fee was not capitalised.
Ms Khunou asked the presenter to give examples for each category of transactions in the next meeting. The examples would help the Committee better understand the fees. The Department should stop hoping that the industry would not charge the maximum fees permissible and just make it clear that particular actions would not be allowed. The credit industry should be instructed how to deal with the issue of fees and consumer information.
Dr Erasmus replied that in certain instances the Regulator would be responsible for enforcing the Act and the Regulations. The interest limits were maximums set by the Minister and it was hoped that the industry would not jump to the maximum rates. The maximum rates were intended to strike a balance between the interest of credit providers and consumers. The Department would not hesitate to draft a new set of Regulation should this happen.
He returned to the fridge example mentioned earlier. A quotation given by a credit provider would not be on the fridge, but the money that one would eventually borrow to buy the fridge. The Act had provisions that dealt with reckless lending. Credit providers would be under an obligation to do an affordability assessment to determine if the consumer could afford the credit. A credit agreement with a consumer who could not afford the credit would be termed a reckless credit and could be suspended. In such a case the credit provider would not be allowed to claim the money. The provisions were intended to force credit providers to prevent the over-indebtedness of consumers.
Mr Setau said that the Regulations should be read in conjunction with the Act. The Act had provisions that adequately addressed some of the issues raised by Members of the Committee. The Regulations imposed responsibilities and functions on debt counsellors. It was important for debt counselling to be undertaken by people with specific skills. This was the reason for coming up with the minimum requirements. The MFRC in conjunction with the Department had rendered debt counselling over the past three years. They had largely used students and articled clerks at Universities Law clinics. Students who had participated in the process had gained some skills and would qualify to render debt-counselling services. They performed their tasks under strict supervision of an admitted attorney. There were risks in undertaking work of this nature. An over indebted person might end up suing debt counsellors for losses as result action or omission of the debt counsellors.
Ms Fontes said that the industry was not regulated in the past. The Act had clear provisions on what type of information could be retained. The mere fact that a credit provider could retain certain information did not necessarily mean that they could do whatever they liked with the information. One should not forget the purpose of the credit bureaux. They were intended to allow the credit providers to assess risks and also to protect the consumers against themselves. The retention period considered the predictive nature of the information. The information that was required was only related to credit assessment. A person's payment profile had a value for five years. Credit bureaus possessed both negative and positive information. It was difficult to find a good balance between what to retain and what not to retain. Consumers would have a right to recourse against credit providers who had used the information for purposes not authorised in the Act. They could also demand that the information possessed by the bureaus be rectified if it was incorrect information. Information relating to fraud and theft could only be disclosed to the South Africa Police Service. Credit bureaus would only be allowed to sell the information for purposes listed in the Act.
Professor Turok said that the commercialisation of private personal information could be problematic because profit and not public interest motivated it. It posed a moral dilemma. One could find that a person had gone bankrupt and such information could be used to profit somebody else. He had no problem with the use of the information in relation to credit assessment. It was very important to regulate the manner in which private information would be used.
The Chairperson said that during public hearings it was found that banks were circulating private information amongst themselves. The Committee probed the issues and banks indicated that they had stopped the practice. He asked if the Department had further information on this.
Ms Fontes replied that it was important to differentiate between credit information and all other information. The National Credit Act and the Regulations dealt with credit information. The other information would be covered under data protection legislation.
Mr Labuschagne said that the Department should revisit the criteria for registration as debt counsellor. A person might have 20 years experience of running a business but still be disqualified. There was a huge number of retired people with life and business experience who could perform the functions of a debt counsellor who would be disqualified. The Regulations did not allow any life experience to count towards becoming a debt counsellor. He said he would rather go to a 50 years old person for counselling than someone who had just finished matric and done a two-year course or para-legal work. What did such a person know about life and debts?
Dr Nkem-Abonta agreed that the criteria were too restrictive. He appealed that the matter should be revisited. The question was why the issue of consumer protection was not simply put in the required course if it was really necessary.
Dr Erasmus said that the Department would revisit the requirements for registration as a debt counsellor. It was difficult to strike the right balance.
Mr Maake asked what mechanism was in place to ensure that things did not continue as they were before. The challenge was to ensure that there was compliance with the law.
Ms Ramodibe said that it was clear in the Act that a credit provider could propose that the credit receiver take out an insurance of the goods to be purchased. The problem at the moment was that credit provider did not do this but simply added the insurance. She asked what mechanism would be put in place to ensure that they complied with the law. She said that she once fought with a furniture shop that wanted to include insurance policy on the goods she wanted to purchase. There was no point in taking up the policy because her entire house contents were already insured. An ordinary person would not know how to deal with these issues.
Dr Erasmus replied that it was important to note that Regulations meant nothing. They were just piece of paper and useless unless they were enforced properly. The Act created the Regulator to enforce the Regulations and the Act. It was important to create awareness on consumer rights. The Honourable Ramodibe was fortunate to know her rights. Different instruments were built into the Act to ensure that credit providers and bureaus adhered to the Act. The Regulator could do spot checks but credit providers and bureaus would have to submit regular reports and the Regulator could initiate processes to verify it. Consumers had right to contact the regulator who was empowered launch an investigation.
Ms Fontes added that credit providers would be required to inform consumers that they could substitute the insurance by an insurance of their choice.
Ms Ntuli said that the fees that credit providers could charge could easily amount to 50% of the loan amount. It seemed that the Department had just rearranged issues that the Committee did not understand and made them understandable. Consumers would still suffer. It was worrying that the interest rate limit for low cost houses was 25%.
Dr Erasmus replied that the low-income housing referred to was unsecured housing. Unsecured low-income houses had a high risk and this was the reason for the 25% limit. The Department was very serious about the matter. It was not just a matter of simply moving figures around.
Ms Ramodibe said that some of the people who bought furniture were illiterate. Credit providers were not interested in whether the consumer was aware of rights or not. They were mainly interested in making profit. She asked if there was a mechanism to ensure that credit providers did the right thing.
Dr Erasmus replied that the Act contained provisions that outlined prohibited conduct. It also provided for offences and credit providers could be fined or imprisoned for doing certain things. He was of the view that the penalties were strong enough to ensure compliance. Consumer awareness was a major challenge. The Regulator would be responsible for education and training and the whole society should help on this.
Mr Maake said that Members of the Committee were representing constituencies that they knew very well. This was one of the reasons why they had kept on going back to particular issues and raise similar questions. The Act should give advantage to the previously disadvantaged over the credit providers. The interest limits and fees were skewed in favour of the industry. It would be difficult for the Committee to explain to voters as to how it had allowed the Regulations to go through in the current form. The aim was to make it possible to have access to credit. The 48% interest limit was the maximum but this was nearly half of what the consumer had asked for. He was worried that some Members might lose their seats in Parliament during the next elections as a result of the Regulations. Much had been said about moving people from the second economy to the first economy. The question was how this would happen if they were charged 48% limit. The Department should not expect the Committee to pass the regulations in the current form.
Dr Erasmus agreed that 48% looked high. The current average interest rate for a micro loan was 360%. He said that he had received a comment from a micro lender on the interest rate. The submission simply asked how the Department could move from 360% to 48%. There was no way that the government could force credit providers to lend money at a particular rate. Forcing them to lend at a particular rate would force them out of the business and would not improve access to credit. The Department had to take economic growth and ASGISA into account and the industry was very important.
The Chairperson said that it was clear form the comments that the Committee was dealing with a very serious matter. The Department would be expected to come back to the Committee and deal with some of the submissions received.
The meeting was adjourned.