Dáil Éireann debate -
Thursday, 14 Nov 1974

Vol. 275 No. 9

Mergers, Take-overs and Monopolies (Control) Bill, 1974: Second Stage.

Minister for Industry and Commerce (Mr. Keating)

I move: "That the Bill be now read a Second Time."

The purpose of this Bill is to provide for the control of mergers, take-overs and monopolies. One of the most remarkable features of the last ten years has been the growth in the number of large-scale take-overs of industrial and commercial businesses. In fact, as a result of the euphoria of that decade of world-wide economic expansion, a kind of merger mania seemed to gain ground in many countries. The arguments in favour of a judicious merger of undertakings are valid, and indeed weighty. Leaving aside the somewhat doubtful concept of synergy, mergers can achieve important economies of scale; resources which have accumulated in a sector in which there is limited scope for further development can be switched to another where better use can be made of them; inefficiency or unenterprising managements can be stiffened up; rationalisation of production and marketing can be achieved.

There can be no doubt that in respects such as these, the amalgamation of enterprise can be beneficial, and I would like to make it clear that I recognise and welcome the contribution which mergers and take-overs can make in these and other ways to the well-being of our economy. In this era of free trade, industries which are too fragmented will not be able to cope with growing competition from abroad. The circumstances of Irish industry are such that more groupings of firms— especially small and medium-sized firms—by way of mergers and take-overs are necessary and will be further encouraged. It is not my intention that the present proposals should inhibit in any way such necessary restructuring of Irish industry.

But it is notorious that not all concentrations of businesses are so admirably motivated. The motive can simply be the elimination of competition. It may be to milk quick profits from a conservatively-run business which has built up large reserves, or even to rundown a perfectly viable business by asset-stripping. In some cases a take-over bid seems to have little object other than the aggrandisement of an aggressive management. Take-overs so motivated can do great harm, and there is a duty on Government to restrain them in the interests of the common good. This Bill provides that take-overs or mergers adjudged to be in this category shall be invalid.

Since some take-overs or mergers can be as desirable as others are undesirable, the problem in the first place becomes one of deciding in which category a particular proposal should be placed. This decision is one which I feel must rest with the Minister for Industry and Commerce of the day. By keeping the decision in a single pair of hands, I think we can go a long way to answer one objection which must almost inevitably be raised against a Bill of this sort, namely, that the delays which the procedures may impose would have the effect of discouraging even the most desirable of mergers.

I would not ask for, and I am sure the Opposition would not wish to give me, arbitrary powers of prohibiting commercial decisions, and there are several provisions in the Bill which guard against an unreasonable denial of permission to merge. First, the criteria which are to determine the decision are set out in the Schedule to the Bill. Further, a proposed merger or take-over can be prohibited only if the Restrictive Practices Commission have inquired into the proposal, examined it in the light of the scheduled criteria and made their report to the Minister, thus ensuring that his decision is taken in a full knowledge of the facts. Finally, should he decide to make an order prohibiting the proposal, it can be annulled by a resolution of either House of the Oireachtas within the next 21 sitting days.

I think that by this machinery I have managed to steer a course between on the one hand a diffused scheme of responsibility with its resultant uncertainty and delay, and on the other hand the danger of arbitrary or inconsistent judgments.

I should say something at this stage about the criteria by which proposed take-overs and mergers are to be judged. The extent to which they would be likely to restrict competition must of course be considered, and their possible effects in endangering future essential supplies or services. Deputies will recognise these two criteria as features of the draft control Bill which lapsed with the dissolution of the last Dáil. Their likely effect on future employment must also be considered and as there is also a further criterion which requires the interests of the present employees of the firms concerned to be taken into account, it will be clear that future employment prospects on a wider scale are in mind here. The impact on regional development is also mentioned, for it could clearly be understandable that, for example, a merger should lead to the closing down of a factory in the west and transfer of production to some area already well provided for.

Two more headings will require a proposed take-over or merger to be examined to see how it fits in with rationalisation plans for an industry, or how far it conduces to increased efficiency, and merits which the proposal may possess in these respects must be put into the scales against demerits which it may have in others. The interests of the shareholders or partners in the firms concerned and, as I have already said, of the employees, are of course matters which must be very much borne in mind— they may, according to circumstances, tell either for or against the proposal —but there are already provisions in the Companies Act, 1963, which provide certain protection for shareholders.

I mentioned earlier that I am conscious that an objection to the Bill may be that even the most desirable merger may be discouraged by the prospect of delays attendant upon the procedures laid down in the Bill. Study of the detail of the Bill will show that I have provided certain short-cuts to approval, and, where these cannot be availed of and the full procedure must be followed, it is my intention to pursue them with urgency so that decisions can be taken in less than the time-limits, in themselves quite short, which are provided for.

Before leaving the subject of merger control, I must say something of EEC proposals in this connection. As Deputies will know, the EEC Commission have pursued a particularly vigorous line in defence of the freedom of competition. The first objective of EEC competition policy is to do away with cartels or the abuse of dominant positions which are in conflict with the establishment of the Common Market and are, therefore, described as "inconsistent with the Common Market". Article 85 of the Rome Treaty prohibits agreements, decisions and concerted practices which have the object or effect of preventing, restraining or distorting competition within the Common Market. Article 86 prohibits the abuse by one or more firms of a dominant position in the Common Market.

The EEC Commission hold the view that a merger of enterprises which has the effect of establishing a monopoly in a substantial part of the Common Market and thereby compromising the freedom of action of suppliers, purchasers and consumers would constitute abuse of a dominant position and should be prohibited. The validity of the Commission's view has been upheld by the European Court. The court observed that the prohibition of cartels laid down in Article 85 of the Rome Treaty would be meaningless if Article 86 allowed these practices to become lawful when they took place within a concentration of enterprises. A draft EEC regulation on mergers and take-overs is now under discussion. It proposes to give the EEC Commission power to declare certain concentrations to be incompatible with the Common Market. It would require that proposals for concentrations of a certain size would have to be notified in advance to the Commission.

This draft regulation, to which I have given my support in principle, is still subject to discussion and negotiation in Brussels, and it is not yet possible to say what its final form will be. It will, however, affect only the merger of very large enterprises indeed, so large in fact that few, if any, of the take-overs or mergers which have occurred in Ireland in recent years would have come within its scope. It is, therefore, necessary that we should on the national front supplement the measures to which we shall be party on the international front. I should make it clear that, at the higher levels of size at which the EEC Regulation is to operate, our national legislation will still be operative alongside it.

So far, I have been talking of take-overs and mergers but the Bill deals also, of course, with monopolies. A monopoly is not, necessarily and of itself, undesirable, and in an economy the size of ours it is inescapable that there should be many undertakings which are monopolies within the meaning of the Bill, that is to say, which provide more than half of the goods or services of a particular kind in this country. In the Restrictive Practices Act, 1972, we already have legislation which can curb undesirable practices by monopolistic concerns, but it is the experience everywhere that statutory controls may be rendered at least partially ineffective where a particular market is dominated by one, unitary concern or undertaking. It is, therefore, necessary to take power, not only to preserve competition by prohibiting mergers and take-overs, but to create or restore competition by breaking up monolithic undertakings. This Bill would thus amend the Restrictive Practices Act, 1972, by adding to the powers conferred by it the power to require the break-up of a monopoly. This power is conferred on the Minister but, like other powers under the 1972 Act, it is subject to confirmation by an Act of the Oireachtas.

The proposals now put forward are non-discriminatory as between Irish and foreign companies and I am satisfied, therefore, that they cannot be considered to be at variance with the right of establishment provisions of the Rome Treaty or with the EEC industrial policy to harmonise the legal systems of the member states so as to facilitate co-operation and mergers between companies across national frontiers, provided such measures do not infringe the rules of competition. However, I have provided in the Bill that before making an order relating to any merger, take-over or monopoly, I will have to specifically consider any relevant international obligations of the State. This will make it clear that any present or future commitments in relation to the EEC will be complied with.

I have already referred to the Bill dealing with certain aspects of mergers and take-overs which had been introduced by my predecessor, but which lapsed on the dissolution of the last Dáil. I am glad to have been able to incorporate certain features of my predecessor's Bill, as also of certain other proposals which he had in preparation, in the Bill which I now recommend to the Dáil. The Bill is now a consistent and effective measure, and while I look forward to receiving the suggestions of Deputies as to its improvement in detail I hope that the principles which inspire it will receive approval on all sides of this House.

Mr. Brennan

One must begin by welcoming at last what appears to be a Bill which proposes to deal with mergers, take-overs and monopolies. The Bill is one requiring much study and, consequently, much attention will be given to its details by Deputies on Committee Stage.

In this Bill the Minister proposes assuming powers which, potentially, could be dangerous from the point of view of unnecessary trespassing on private enterprise and involve undemocratic principles which we should be prepared to eliminate as much as possible from our industrial undertakings and national enterprises. The Minister has said that the delay in bringing forward the Bill was due to his making of it a much more effective instrument of legislation than was the case in relation to the Bill we had on the stocks at the time of the dissolution of the last Dáil. I am not sure that the Bill before us now bears out that assertion of the Minister's. The one essential difference in this Bill, as distinct from ours, is the provision whereby the Minister is taking to himself much wider powers than were proposed by his predecessor in relation to this matter.

This provision has been the cause of some concern to enterprise throughout the country. It is understandable that the Minister has extended the monetary limits proposed in the original Bill because, in the meantime, inflation would have rendered that a necessity. However, I am not clear as to what the Minister has in mind when he refers to a sum of £500,000 as being the assets and £1 million as being the turnover of an enterprise in relation to a proposed merger. Does "enterprise" in this case refer to each partner to the enterprise or does it mean, in a broad sense, the entire type of work which is proposed to be merged? Does it refer to each separate partner who has assets of £500,000 or whose turnover is £1 million or does it mean that, collectively, these are the amounts of money involved? This is a matter which can be clarified at Committee Stage.

The Explanatory Memorandum relating to the Bill tells us that:

(1) It applies to every proposed merger or take-over where the value of the gross assets or the annual turnover of any enterprise proposed to be merged or taken-over is not less than £500,000 or £1,000,000 respectively.

However, it is not clear from that whether the reference is to each partner or to the type of work involved.

In the Bill we intended proposing it was provided that before any merger or take-over could take place, the firm or enterprise proposing it or any partner to it would be obliged to notify the examiner, the examiner being interpreted as meaning the examiner who deals with the Monopolies Commission. In this Bill the provision is that any partner, any principal or any person who is to be a partner to a proposed merger must notify the Minister who, in turn, notifies the examiner who, subsequently, reports to the Minister. The buck may stop there if the Minister so wishes but the Minister may then proceed to involve a commission who would report to him but at all three stages the Minister would be involved personally in making a decision. This is more than should be entrusted to any Minister at any time.

We are accustomed to having these complaints and the Minister has had to write into the legislation powers which the House, with all the background knowledge of the working of this institution of democratic Government, know has never been abused to any serious extent but could be if a special case arose. I do not know to what extent the Minister for Industry and Commerce may be accused of Marxist-Leninist views. This accusation is sometimes levelled at him and I know he may be suspected of using the powers which he undoubtedly is assuming in this legislation for doing things that a Minister in a democratic institution would not dream of.

The first conflict of opinion in that respect would arise in deciding between what was rationalisation and what was of benefit to the workers involved. We all know that most mergers and take-overs are motivated in the first instance, if they are genuinely motivated, by a desire to reduce costs and produce more efficiently—in other words, efficient production and reduced costs. This inevitable means the employment of fewer workers. Any merger that is based on efficient and cheaper production will be orientated towards the employment of better equipment, machinery or whatever is used in production, and fewer hands employed. A Minister, if he wished, could take a side which would not be in line with rationalisation and say that if The Irish Press, Irish Independent and The Irish Times came together as a consortium they could dispense with a couple of hundred workers to start with, instal the most up to date machinery and give us a better daily newspaper—I make no comment on this—and they could show they would give it to us cheaper.

There are many things to be considered here but all the criteria laid down in the Schedule to this Bill would justify that being done and it could be proved to be in the national interest and be, to repeat the phrase used in the Bill, for the common good although it could ultimately turn out otherwise. The most important thing is that it is the Minister's decision. He will decide if this should be submitted to the examiners, who have certain criteria to guide them but these may not be relevant as far as the Minister is concerned because he may decline to submit the matter to them. If he has had it examined he may or may not submit it to the commission. He may give them certain directions under what aspect they should examine the matter in relation to the various criteria. When he receives a report from them he may or may not decide to make an Order. He has even taken authority to let it go by default. He may delay for three months which he can extend for a further six months and at the end of that time he might not make an Order. During this time the firms can take it they are free to proceed because the Minister did not decide one way or another by statutory order if they were to merge and under what conditions they might merge.

These are things which undoubtedly are available to any unscrupulous Minister who may wish to use them to protect an advantage or in relation to a particular political outlook. I do not believe in public representatives handing over every authority to some so-called commission or committee or a number of persons to inquire into something because I believe when we do this we are abdicating our own responsibility. We often hear this about elected representatives. They could be depicted as a lot of gangsters although they are part of the democratic set-up.

There are limits to which we should go and one could be seen to be protecting what could be one's individualistic feelings. This is nothing new from this side of the House because when I was Minister these accusations were made in relation to every piece of legislation I brought forward. I do not think the accusations were as justified as they are in relation to this legislation. When I introduced the Control of Dangerous Substances Bill there was a good deal of furore about permitting inspectors to examine the books and premises of persons legitimately involved in the business. It was necessary to insist that that power would only be used in the last analysis and such inspection would be done by people who would not violate the well-established code of behaviour in relation to secrecy in these matters.

We have the same thing in this Bill. Private enterprises will be subjected to having all their accounts and records examined. They will also have their dealings over a period examined. While it is written in that it is an offence for the people who carry out such examination to publicise, except in instances where it is necessary, their findings, the fact remains that civil servants or persons authorised by the Minister will be in a position to go into a firm and examine all the workings of that firm in order to ascertain the real purpose of the merger, take-over or monopoly.

Fianna Fáil felt it absolutely necessary to have a Monopolies Bill of this kind because we felt legislation was necessary to ensure that the one thing everyone fears will not result from monopolies or take-overs, that is the collaring of the major part of a market so that those involved could charge what they liked in relation to a product. Leading up to a monopoly situation many strong firms are prepared to lose money for a time in order to get a grip on the market and create a climate whereby others will be easily persuaded to merge with them. When they become a monopoly they can recoup themselves for any losses they have sustained. That is looking at firms as being a lot of gangsters but, thank God, very few of the firms operating here are motivated by such evil thinking. There is a code of business where to succeed one has to get the cheapest price in relation to output and the best return when disposing of the goods.

My earliest teaching in economics, however outmoded now, was that it was good business to buy in the cheapest market and sell in the dearest. But one must have regard for the common good and it is only right that Parliament should ensure that abuses in these matters do not happen. The Confederated Union of Employers and the CII have issued to all Deputies a good deal of material much of which is quite helpful. I would not agree with some of it but most Members opposite will agree with most of it. Some of it may be a little controversial but all of it merits careful attention on Committee Stage.

We should in no way alienate the co-operation of the many firms and enterprises that have struggled to become successful. We are a small country, as we say so often, and we experienced a little affluence in recent years. By some people one would think we were about to take over the Continent or the United States and that we are enjoying a marvellous and luxurious period. By international standards of the civilised world we have few wealthy people, if any, and few big combines and few signs of luxury and affluence. Let us not be too quick to jump on people who have been struggling to make a success of their business or industry. Most industries or businesses that have succeeded here have done so with State protection, with borrowed capital. If they failed they were regarded as being no good or as not having proper management; if they succeeded, we tended to brand them as speculators and monopolies out to ruin society.

Between the partners in industry, workers and employers—now known as social partners—we should tend to create a much greater feeling of confidence and respect, rather than brand people who generate wealth as people on whose throats we should have our feet at all times because we cannot redistribute the national wealth unless those who produce it are getting a decent chance to live to produce it. I am not satisfied that there are not signs now of a complete recession and a fear among those who have been generating wealth who now feel they are regarded as speculators who should be bound hand and foot by legislation lest they go wrong to any extent and at the same time they are expected to produce the wealth as they have been doing so that it can be redistributed to the weaker sections.

All our efforts should be directed to creating a much better association, a much better relationship between the social partners in industry and business. In dealing with legislation of this kind that is one consideration that should be uppermost in mind. I have had considerable experience of sitting down with the least possible ostentation with the two sides of industry time and again before we brought about the first national wage agreement. I found it is possible to marry the thinking of these two groups. There is a much closer relationship between them than sometimes may appear when people, for mere political purposes, talk in terms of how workers are being denigrated or not properly looked after by the other social partners, the employers. Everything done within our democratic system should be aimed at bringing about better relations between these groups irrespective of what they may be told by others for political reasons because the success of one is the success of the other. I never saw a working man who was not happier working in a successful industry than working in one tottering on the verge of bankruptcy.

We have sufficient checks and balances to ensure that nobody will amass an inordinate amount of the country's property or finance without it being distributed for the betterment of the community generally. When such people, struggling with income tax returns see the governor on the engine rising towards the 80 per cent mark, they find the incentive to work becoming less. Deputies like Deputy Dockrell must know the absolute truth of what I am saying. Those who have been in business for generations and know the conditions with which they have had to wrestle are beginning to find now that there is very little respect for the blood, sweat and tears that private enterprise had to put into the building up of what is the real wealth of the country.

We should, therefore, be particularly careful in a Bill of this kind to eliminate any possible unnecessary trespassing or any irksome legislation which would make it more difficult for people motivated by nothing but the desire to give more efficient production at the lowest possible cost. A simple Bill can do that. I question whether the Minister is not taking powers that are too drastic which he or another Minister may use if they so wish to make it virtually impossible for a business to carry on and indeed make the pushover to extreme socialism and nationalisation a simpler process. This is why some people are now becoming frightened. The only difference between the draft and our legislation, the 1972 measure which I have before me and the 1974 Bill now introduced, is that the Minister has more definite dictatorial powers under the new Bill. The first notice must go to the Minister; he may then decide that there is no need to do anything further and he may permit the parties concerned to merge. He may send it to the examiner who reports back to him. Again, he may decide to let the matter go ahead or he can submit it to the commission which will report to him. At that stage he can decide if any further action is necessary. He may sit on it for nine months and let it go by default and during all this a very considerable amount of time is lost and this is not compatible with the practice of good business people engaged in private enterprise.

The Minister, in his opening statement, rightly mentioned the importance of mergers in some instances. They can be essential and are often a boon to society leading to much cheaper products for the consumers. Frequently, they lead to more efficient production and enable a greater volume of exports to be achieved. A good firm must continually seek better means of production and cheaper costs. The danger lies in the possibility—and the purpose of this Bill is to obviate it—of a few unscrupulous firms collaring a market and once they find themselves in that position putting their product on the market without competition at whatever price they wish. That is the whole purpose of this Bill.

I do not think it is necessary to take such drastic powers as the Minister proposes to take in order to do that. The Minister will argue that he has no intention of doing harm to any industrialist, that this will be applied with the least possible irritation and inconvenience and that only those who seek to step out of line will feel the effects of this legislation. They have had the Monopolies Act in England for some time. It makes it necessary for certain mergers to be examined by a monopolies officer.

It is, so far as I remember, very much outside the control of Government, very much outside political manipulation or any suggestion of political manipulation. I hope we will give special attention to those things when we come to Committee Stage. On Committee Stage many of the sections will be elucidated and perhaps some of them eliminated.

In the Bill there is a limit mentioned. It is £500,000 for assets and £1 million for turnover. I do not know whether that means for the aggregate of all the firms concerned or for an individual firm. It may be the aggregate; but, if it is the limit set for individual firms, 60 or 70 firms, all below that limit, could come together and form a very strong combine.

There are a number of monopolies in the country. The ESB are one. The ESB can charge whatever they like and one man in the ESB can leave the country without power overnight if he wants to go on strike. If there is one industry that requires to be regionalised or put in some sectional operation position it is the ESB. CIE, the transport company, have no competition whatever.

There are semi-State bodies like Aer Lingus which are exposed, to some extent, to competition but there are many others that are not and will not be covered by this legislation. They are specifically excluded and that is understandable. Would it not, however, make the Minister think? All of us have seen State-sponsored bodies in operation for some time. We might consider what more should be done in relation to those monopolies.

We have created some very successful "monsters". Bord na Móna are doing a tremendous job for this nation, but are we sure that if there were two or three firms doing the same job it might not be better? It may be argued that competition would have prevented the development of Bord na Móna. It was certain in the early days that private enterprise would not go into this field and it was essential to create the monopoly at that time. The same applies to many of the other State-sponsored companies. But now that we have created them should we allow the monopolistic element to continue? Is there anything to which we could turn our minds to ensure that some element of competition is introduced? Can these important companies not be made to bring in a greater element of efficiency and provide a cheaper product for the community? When we are dealing with a few private firms it is worth while thinking of some of the giants we have ourselves created and trying to ensure that they are giving us the most efficiently produced product at the best possible price. Do we regard them, as some of them at times appear to be, as companies doing a social job, companies that are only concerned with paying the highest possible wage and employing the greatest possible number of people? Are they a good example to private enterprise? Is it good example to apply strict legislation to private enterprise while we allow those people to carry on without this House even having the right to know what their top executives are paid? I will not accept as an answer from the other side that it was Fianna Fáil created that position. We were very glad to create those great corporations when it was necessary to do it but that does not mean that we should not, with the passage of time, have a serious look at what they are doing and bring about improvement. There is an onus on us, as public representatives to do that. It is when legislation such as this comes before us that we are inclined to think of such things.

I am not sure from a reading of section 1 (1) (a) whether building societies are exempt or not. I will read the relevant part of the section which deals with it. It simply states:

"service" has the meaning assigned to it by section 1 (1) of the Act of 1972 and, notwithstanding the exclusions specified at clauses (b) and (g) of that section, also includes—

(a) a service which is banking business within the meaning of the Central Bank Act, 1971, carried on otherwise than by the holder of a licence under section 9 of that Act

I take it the commercial banks are included. The section goes on:

or by a trustee savings bank certified under the Trustee Savings Banks Acts, 1863 to 1965, or by a building society under the Building Societies Acts, 1874 to 1974,

I take it the Bill excludes building societies and I wonder if that is wise. At this stage I merely question the wisdom of the provision in relation to a situation in which a number of building societies would decide to come together to form one strong society that would attract greater investment and that could be run with lower costs and overheads. Perhaps there are circumstances in which we should have them included and this is something we will be looking at for further clarification on Committee Stage.

The large memorandum issued by the CII is very useful. It breaks down the legislation and gives opinions in relation to all parts of the legislation. Some of them I agree with but I very definitely disagree with others. It will be a matter for us to propose amendments at the relevant stage of the Bill.

While we are delighted that legislation dealing with monopolies, mergers and take-overs has arrived at long last, I question the excuse of the Minister at the time for the long delay: he announced that he would be bringing in a Bill which would be superior to what his predecessor had in stock. Perhaps he did not use the word "superior" but he intimated his Bill would be much more comprehensive and would contain many provisions not in the proposed Bill. The only difference I can see is that this Bill has dictatorial features and one thing we must ensure is that we do not bring in legislation that would deter good mergers from taking place. As a final comment, I am glad to see that the Bill has at last come before the House.

Mr. M.E. Dockrell

I view this Bill with a great deal of interest and a certain amount of trepidation. I have been enlightened somewhat by the Minister's opening statement and by the explanatory memorandum. He has told us the purpose of the Bill is to provide control of mergers, take-overs and monopolies. I join with Deputy Brennan in his hopes for the end product. I am sure the Minister's desire is that when the Bill leaves this stage it will have gone through examination by the various Deputies on both sides so that in due course, when it passes to the Statute Book, it will be the best possible.

A great deal of this Bill is a matter of detail and to examine it adequately one must underline the philosophy behind it. That can sometimes only be appreciated by going into the details of legislation. We have all read in the past of the big American antitrust struggles that went on almost a century ago, the tremendous legislative struggles in relation to various companies in oil, railways, mining and so forth. We in this country have not got the control over raw materials that big nations like the US, Germany, England and France have. They have the ability to create enormous monopolies and they have created them.

The definition of a monopoly is a group of firms which control 80 per cent of the production of certain articles. I do not think we have anything like that here. We have had mergers and take-overs and, in the main, they have been to the benefit of the country. I cannot call to mind any particular take-over or merger that actually was to the detriment of workers, shareholders or the public in general. I can call to mind—I do not propose to name them even under pressure—certain firms which went out of business; had they merged or had they been the subjects of take-overs the employment of a number of people would have been safeguarded and great hardship would have been avoided. There could, indeed, have been increased activity with the prospect of more employment. To my own knowledge in a section of the trade in which I have spent my life I have known of firms which closed down because of the value of their premises and their stocks, firms which could well have merged and continued to give employment.

I do not think we are at risk from monopolies in the way in which the United States was at risk long ago. We are at risk, however, where big outside firms are concerned. Because they are sited in much wealthier countries with very large populations they can often, though not always, sell at a cheaper rate than can the Irish firm. They can also stand for a longer period running either at a slight loss or a marginal profit. Mergers and take-overs are often necessary to cope with these big firms. I do not say these big firms are inherently evil in intent or in their business methods. Sometimes they may act to the detriment of the public but as often as not they maintain good standards. They are also in a position to compensate in certain circumstances. I am thinking of the payments made to thalidomide children. The firms concerned were horrified at the effect of their products on human beings and they have set aside compensation running into millions of pounds. That kind of compensation could not be made if the firms were not big enough.

We have today a great many synthetic products, a great many products of a medical nature and a great many people taking these products, and horrible accidents can happen. Lest we become too hypocritical in our judgments of big concerns, we must contrast the present situation with the small shops at the corner years ago, the small grocer and the small chandler. The small grocer, it was said, shut up shop on Sunday and worked down below putting sand in the sugar. I do not suppose that happened to any great extent. The small chandler sold dangerous commodities without their being marked in the way in which one would expect them to have been marked. I just mention these things.

We are in a process of evolution. Growing big is by no means all. The previous Government had a Bill on the stocks to deal with mergers, take-overs and monopolies. I am not prepared to make any case for monopolies in the industrial sense. I cannot think of any particular advances in human happiness or in expertise in manufacture that resulted from monopolies which might not equally well have come from a large business which was not a monopoly. Perhaps monopolies have had certain advantages, but I am not aware of them and I make no case at all for monopolies.

As the previous speaker said, we have monopolies. We have the ESB. We have CIE. We have one or two firms which are not monopolies in the real sense, but border on monopolies because of the excellence of their products. There is one particular liquid so excellent——

Mr. Brennan

Bring back Arthur.

Mr. M.E. Dockrell

——that it almost enjoys a monopoly. This is due to its flavour, excellence and so on. It is not a monopoly because people are free to indulge in other liquids, if they so wish, though they may not have the same flavour or be quite as good for people. As citizens I am sure we buy products coming in here which are possibly monopolistic products. We do not necessarily know that and there is nothing we can do about it.

The Minister must be very careful not to hand over Irish businesses bound hand and foot to large monopolistic concerns outside the State who can do what they like here. We have all seen the effects oil has had on our economy and on the world. I do not know whether one would say it was a monopoly or a merger, or whether the various oil producers took each other over, but at the moment the world does not know what to do about the situation. The Arab oil producing countries appear to be monopolistic.

We have not got any oil companies but, if we had, God help them if they were to be tied in knots running in to this examiner, and that examiner, and the Minister. I do not think that is necessary. It is very dangerous. I do not like to be a party to bringing in something under which some Minister in the future can decide that he does not wish to allow this merger, or that he wishes to break that merger, and appoint somebody who will echo his views. The decision should be made by a judge or there should be a right of appeal to the High Court. Otherwise it might afterwards be held to be against the Constitution. However, I am not a lawyer and I do not propose to go into that.

An order can be made prohibiting a proposal and it can be annulled by resolution by either House of the Oireachtas within 21 sitting days. That is a protection but, in the future it could be more illusory than real.

Presumably the Government of the day will have a majority and can call on that majority, within 21 sitting days, to ratify the action of the Minister when it might not necessarily be in the public interest that that should be done. In pursuance of that idea, that risk which is always there, we should have recourse to a judge or to the High Court.

I want to deal now with the size of the concerns who propose to merge. The Bill refers to assets of £500,000 and a turnover of £1 million. A firm with assets of £500,000 would not necessarily be very large and, with inflation by the time this Bill is well under way that figure could have a very different meaning from what it has at the moment, and an extraordinarily different meaning from what it had two years ago. Assets of £500,000 are not very big even if they refer to each of the two firms in the merger. A turnover of £1 million is not very large in terms of big business. It is a rapidly shrinking amount. The Confederation of Irish Industries who produced this very interesting memorandum mentioned a turnover of £30 million or £40 million. It is stated that the EEC recommendation is that the limit should be something in the neighbourhood of £80 million. That is very different from £1 million, or £2 million if we take it that each firm would have a turnover of £1 million. Possibly we would be in conflict with the EEC legislation.

The Minister mentioned the EEC draft resolution and said that that matter was now under discussion. He went on to say that the validity of the Commission's view has been upheld by the European Court. That matter could very properly go before the EEC joint committee of both Houses which deals with draft legislation. This committee was set up to deal with such matters and it could very properly come before it before it disappears into the interstices of any Government Department, however good a scrutiny it would get when it went there.

We will go into these matters on Committee and Report Stages. I am not going into the minutiae of the Bill now. The broad concept of the Bill hinges on certain things. One is the power of the Minister to deal solely with it, with the provision that the Order can be annulled by resolution passed by either House of the Oireachtas within 21 sitting days. It would take the overthrow of the Government to set that aside. That would be a difficult and delicate thing to do. I do not think any commercial firm, no matter how big, would have the nerve to embark on the degree of contemplated legislation necessary to endanger the Government. That would be a big step. This is something to be hammered out on Committee Stage.

The statutory period of nine months seems very long for a take-over or merger to remain dormant. Sometimes there are other nationalities concerned in these mergers and take-overs and these people are not bound by our legislation.

The Bill also deals with the protection of shareholders. The Schedule deals with the criteria for the purposes of sections 6 (b) and 8 (2). The Minister and the examiner should bear this in mind. One memorandum asked for clarification on regional policy. As a natural precaution, the Minister should take into account the extent to which the proposed merger or take-over would be likely to affect employment and would be compatible with national policy in relation to employment. It could take more than nine months to settle that question. At the moment the interests of shareholders are the responsibility of a council or a committee of the Irish Stock Exchange. The British have their own bodies to deal with this. Where Irish and English take-overs impinge they must get clearance from these bodies. In that case the firms concerned are being judged and examined by their own peers, which is a very old principle of law.

There is a danger that some future Minister may wish to put forward policies different from the policies of the present Government. We want to ensure that the matter cannot be rushed through by Ministerial action in future or delayed so long that the parties to the merger have died of old age or given up in despair. That, too, could be usefully examined also on Committee Stage.

We are a small country of roughly three million people. We do not have many industries which could become monopolistic nor is it likely that our businesses can, by virtue of mergers or take-overs, present a danger to our citizens. We are here to protect the interests of the Irish people and we are anxious to do that. I cannot think of any merger which would bind the Irish people hand and foot to a consortium, because we have the safeguards of price control and taxation. A large number of safeguards are built into our taxation policy and fiscal policies generally. Therefore I do not think we need have any great fear from that point of view.

We do have a real fear that Irish companies may be hindered by bureaucratic machinery—perhaps inadvertently—which may not be the intention of the examiner or of the Minister of the day. But, owing to pressure of business, to a way of doing this which has developed, Irish businesses may be prevented from becoming large enough to face competition of outsiders. Those outsiders would not be hindered by Irish regulations, rules or laws. They would come here with their end product, a motor car or anything else, produced under circumstances of extreme merger, perhaps of almost high monopoly. None of us stands over monopolies. Nevertheless, there might be small Irish companies—small companies by international standards, as are all our companies—hindered by the fact that they could not group themselves into large companies to speak with one voice. There is one company in America of which I have knowledge —an electrical company—which has a payroll bigger than the whole of the Irish Civil Service, police force or Army. Imagine that type of firm interesting itself in the Irish market and dealing with very small Irish companies which they could pick off one by one.

There are many arguments that could be advanced. I am sure the Minister will listen to them. I hope he will amend the relevant parts of the Bill to ensure that that type of situation will not necessarily arise and that our people will not find themselves too small to cope with such a situation. Of course, our protection is that, as we are small, so is our market. But there is an old saying—little fish must feed. Therefore, one never knows what pike might come along looking for an undue share of our market.

I am glad the Minister has expressed the wish to produce the best Bill under the circumstances and that he is anxious that the Bill be criticised. We would all want to protect our firms from undue attacks from the outside and, for that purpose, a Bill is necessary. But we must bear in mind that our people must not find themselves too bureaucratically controlled as a result of our anxiety to help them.

Mr. Lalor

Let me say initially that any possibility there was of my opposing this Bill was ruled out of order when I heard the Minister, in the concluding part of his speech, saying he was glad to have been able to incorporate certain features of his predecessor's Bill and also certain other proposals which his predecessor had in preparation in the Bill he now recommends to the Dáil. In that regard, let me say that the Bill, as presented, leads me to wonder at the long delay in its circulation, in view of the fact that there have not been great changes from the Bill known as the Restrictive Practices (Amendment) Bill of 1972. However, I will concede that there are a number of changes. The impression given by the Minister way back was that he wanted to have a Bill with a great deal more teeth than the original. Quite frankly, I do not think this Bill contains such teeth.

I have been reading the comments of the CII—both in their newsletter and in a far lengthier document which was circulated to Deputies since— and, peculiarly enough, I can legitimately say that anything with which they found fault in the Bill they could equally have found fault with in the Bill I prepared before leaving office, with one notable exception. That being so, it is very difficult for me to find any great fault with the Bill. As our spokesman on Industry and Commerce, Deputy Brennan, has said, it is a Bill on which we shall have more to say on Committee Stage because there are some parts of it which require some change. I propose to deal with these as I go along. But, in general, it is very much based on the lines on which I had been thinking when I occupied the Minister's seat. In fact, the Minister, in his introductory remarks, specifically drew attention to some changes he had introduced.

Of course, a certain amount of the thinking behind the Bill is influenced by the proposed EEC legislation on this subject but the Minister said,

Deputies will recognise these two criteria as features of the draft control Bill which lapsed with the dissolution of the last Dáil.

He went on to talk about the headings. By way of expansion, he drew attention to the fact that the former Bill had not taken into account the likely effect on future employment which must be considered also when there is any question of merger or takeover. He then mentioned two other headings which would require a proposed take-over or merger to be examined to see how it fits in with nationalisation plans for an industry or how far it conduces to increased efficiency and merits which the proposal may possess in these respects must be put into the scales against demerits which it may have in others. Those are legitimate points. But I do not think that the additions the Minister has incorporated in the Bill justify the sort of defensive attitude adopted by the Minister over the past 18 months as to why this Bill had not been circulated.

I was rather surprised at the volume of opposition from the Confederation of Irish Industry in relation to this Bill. They issued a newsletter and sent out a sizeable document in which they set out their criticisms of this measure. I have been in Government in the past and have been attached to the Department of Industry and Commerce and in the light of the knowledge and experience I have of such matters I cannot take as seriously as I might otherwise some of the points made by the CII.

One of the points made by the confederation, and perhaps by an objective person, is that there was no need for this enormous piece of legislation to prevent the rare kind of unwelcome merger that takes place. The confederation point out that it is necessary to have mergers and they state the Department have encouraged and are continuing to encourage in a number of cases the merging of certain firms. I know there were COIP reports recommending this but I consider this type of legislation is necessary to prevent the odd merger or take-over that can seriously affect industry here. I cannot understand why the CII are so totally opposed to this Bill. From the point of view of an Opposition spokesman, in the normal course it would be helpful to use the points made by the CII but many of them are clearly unjustified and, consequently, it is difficult to take up the cudgels on their behalf.

In a debate like this we must allow ourselves to be used as spokesmen for those who cannot be in the House to put their case and I propose to do that in some instances on this Bill. However, I do not propose to attack the Bill on the basis of some of the points made by the CII. They stated that the ceiling of £500,000 in assets and £1 million in turnover should be raised. Built into the Bill I had proposed was a ceiling of £250,000 and I am surprised that the CII are talking in terms of figures as high as £20 million or £30 million in the Irish context. That is quite ridiculous. They have stated that the turnover of some of the ordinary supermarkets here may be more than £1 million and, therefore, it will not be possible to buy out a supermarket chain without the Minister sticking his nose into the matter. I agree totally with the Minister or the examiner sticking his nose into that kind of operation.

The Minister mentioned that one of the most remarkable features of the last ten years has been the growth in the number of large-scale take-overs of industrial and commercial businesses. It was arising from this apparent spate of take-overs and mergers that the thought was planted in the mind of the incumbent in the Department of Industry and Commerce in the first instance. I recollect quite clearly that it became necessary to have something positive enacted in relation to this matter when there was the Roadstone-Cement merger. I was aware at that time that it was necessary to take some action.

I was not present to hear the full contribution of Deputy Dockrell but it strikes me there are interests that may be opposed to this legislation, quite unjustifiably and for selfish reasons. One of the unfortunate experiences we have had in the last few years has been the taking over of small firms who might not have had many assets but who had considerable potential. I am not an expert in financial affairs but I think much profit was made from this type of dealing. This makes me all the more inclined to support fully a measure of this nature. There is no doubt about my support for the Bill. The only point at issue is for the Minister to clarify certain matters. My contribution now and on Committee Stage will be from the point of view of trying to help the Minister to make this legislation as streamlined and as practical as is possible.

In view of the approach of the CII to this matter it was necessary for the Minister to devote some of his opening remarks to spelling out quite clearly that mergers and take-overs in most instances are to be encouraged. As far as I recall, there is a section in the Department of Industry and Commerce specifically for this purpose. In the last few years our experience with regard to the furniture, textiles, and boot and shoe industries show it is necessary from a departmental point of view to encourage this type of merger and amalgamation. When I was in the Department a major task was to encourage a considerable number of mergers in the textile industry. Unfortunately some of them did not come off with the result that a number of firms have gone by the wayside in recent times.

In case it appears I am too anxious to give out bouquets, I would point out that I was rather surprised at the Minister taking the initial power of specifically deciding whether there should be a merger or take-over before handing over the matter to the Examiner of Restrictive Practices. While there may be a certain amount of justification for this, the Minister is leaving himself open to the historical and traditional accusation of being a political animal and of being capable of allowing political considerations to influence his decisions. In the Restrictive Practices (Amendment) Bill, 1972, it was proposed that where a merger or take-over was intended, each enterprise making such a proposal or each enterprise to which such a proposal was made should notify the examiner in writing of these proposals.

Having examined the Bill which we introduced and having been reading this one during the past few days, I see a number of areas in which there could be improvements in the measure before us. Instead of the examiner being notified of merger proposals, as was proposed in our Bill, it is proposed here that notification of proposed take-overs be made to the Minister. I can understand the Minister not going into this provision in too much detail in his opening remarks, for not developing the reasons for this, but in his closing remarks he spoke of having used a certain amount of what was contained in the Bill we proposed. What is involved here is not amending legislation since the other Bill got no further than the introductory stage but there is a fundamental change in the proposal before us. For example, there is at present and has been for some time on the stocks, the planning Bill, one provision of which is to take from the Minister the power of deciding appeals and, instead, to have appeals dealt with by an independent body. In this instance that situation is being reversed. The original proposal was to leave the decision in regard to mergers in the hands of independent persons, to keep such decisions out of the hands of politicians. However, the proposal before us now would mean that the examiner would not be involved unless, in the first instance, the Minister would consider his involvement to be justified.

I am not ascribing any wrong motivation to the Minister in this regard but I must ask whether what is proposed is wise. The Minister may tell me that, knowing to what extent we need amalgamations in certain sectors and, having at his disposal the advice from his Department, he would be in a better position to reply within a very short time as to whether any proposed take-overs were in order. On the other hand, in handing over such matters to the examiner the Minister might be accused of applying a delaying tactic to prevent something from taking place although he might be convinced that in the long term what was proposed was good.

In this context I would refer to the document in relation to this Bill which has been circulated by the CII. The criticism from industry relates to the dangers of delays. In my opinion, however, they are putting forward exaggerated objections to the Bill. They refer to the problem involved, from a merger-take-over deal point of view, of having to wait three or six months for a decision or, as is claimed by them in their documents, nine months. I agree that there could be a problem in the case of delay but I hope that the Minister will be able to tell us that in the normal course, these matters could be dealt with speedily. In this document the CII claim that the Bill proposes that where the Minister has been notified of the proposed merger, he may within one month request further information. It goes on to say that no merger will be valid unless the Minister has indicated that he does not propose to prohibit it or, alternatively, a period of three months, which may be extended to nine months, has elapsed without ministerial prohibition but that the prohibition period begins only when the request for further information has been met.

My reading of the Bill is that the prohibition period begins only from the time the request for further information is issued. I hope that the Minister will be able to tell me that the circular is wrong in this regard and that he will not be able to extend the period from three to nine months. As I read the Bill, the Minister can extend the period but only for a maximum of six months. I would not visualise there being that type of delay in the normal course. If there were a delay of six months or if the Minister made an order extending further the period it would be for the purpose of giving further serious consideration to the proposal concerned. I can understand the CII's problem in this in so far as there are so many mergers and take-overs taking place. However, perhaps 95 or 96 per cent of these are for the purpose of improving businesses competitively or of improving services but there is the danger of the big get-together. Mergers lead to monopolies and monopolies lead to distortion or restriction in trade.

When speaking of monopolies I might refer to what is one of my hobby horses. Deputy Brennan spoke specifically about the monopolies in such fields as transport and the provision of power—the State monopolies. One non-State monopoly I would like the Minister to refer to the Fair Trade Commission when the Bill becomes law is the monopoly exercised by Green Shield stamps. I hoped to get something done about that when I was Minister for Industry and Commerce. I was disappointed one day when I heard the Minister saying that he discovered his predecessor had changed his mind in regard to his opposition to Green Shield stamps. I want to put it on the record again that I never changed my mind in regard to this firm and the harmful, non-productive type of monopoly they are. The Minister stated today:

A monopoly is not, necessarily and of itself, undesirable, and in an economy the size of ours it is inescapable that there should be many undertakings which are monopolies within the meaning of the Bill, that is to say, which provide more than half of the goods or services of a particular kind in this country. In the Restrictive Practices Act, 1972, we already have legislation which can curb undesirable practices by monopolistic concerns, but it is the experience everywhere that statutory controls may be rendered at least partially ineffective where a particular market is dominated by one, unitary concern or undertaking.

There are many people who would love to be Minister for Industry and Commerce for one day—they feel they would be able to clean this country up. I was Minister for Industry and Commerce for slightly less than two years and I tried to clean up the country in relation to trading stamps. I ran into every type of obstacle. I agree with the Minister when he says that it is the experience everywhere that statutory controls may not be effective. In relation to the Green Shield Stamp Trading Company monopoly I would like to say that having the monopoly is one thing but trying to get something done about it is another. I would like to refer to the manner in which this monopoly can use their power. I had a recommendation from the Fair Trade Commission and the National Prices Commission to outlaw this monopoly.

Mr. Esmonde

Is that the grocery inquiry?

Mr. Lalor

Yes. I tried to tackle this. I brought a storm of trouble on my head by saying that I fully agreed with the National Prices Commission and the Fair Trade Commission and that I proposed to introduce legislation to outlaw stamp trading. I expected reaction from the housewives but the most serious reaction I got was from the manufacturers, the many small industries that the monopoliser got at. They were told that if the monopoly went out of business those small industries would lose a stack of orders. If the Minister goes through the files on this subject he will find letters to the Minister for Industry and Commerce and the Department from about 12 different printing companies who wrote to say they were small printers and all their business was printing catalogues for Green Shield stamps.

I believe I boosted exports to the UK that particular year by a few million pounds because a shower of orders came in from the Green Shield stamp company to manufacturers here ordering manufactured items, orders such as they never received before. They wanted to put themselves in the position of being able to write to those small firms a month later stating they would never get that type of order again if the Minister for Industry and Commerce had his way. The file of letters supporting me from small shopkeepers in towns all over the country who were being squeezed out of business by their next door neighbours who had the stamp franchise were quadrupled by the letters of opposition from the housewives but particularly from the people who said they would have to dismiss ten, 15 or 20 employees if they lost the order with the Green Shield Stamp Trading Company. That was a hefty load for a Minister to carry, but because the franchise holder for Green Shield stamps had to meet an increased charge, I felt I was justified in keeping after the stamp company. The case rested at that stage but I never changed my mind about it. When I spoke about it as a monopoly I was in order, but when I began talking about correspondence I was out of order. I am glad I got the opportunity of getting my message across.

I was pleased that CII stated that Government policy over the past decade had accomplished a great deal of what they set out to do but the task is far from finished. If this legislation only has the effect of blocking one undesirable merger a year it will have performed a useful function. During the preparation of this legislation I heard of proposed mergers and regretted I had not the legislation to enable me to have a more serious look at them. Mergers took place then, and are still taking place, which are not for the good of industry. It was possible to look at this under the old Bill. without having to wait until we built into this Schedule the criteria dealing with the preservation or protection of employment. I still think that the Examiner of Restrictive Practices could have dealt with a proposed take-over or merger under the old proposed Bill as under the existing one. The Minister may disillusion me on that point.

This CII document states that it must be seriously questioned that this Mergers and Monopolies Bill as presented is necessary at all. I say it is. They go on to say: "Analysing the document one may express surprise that there is no endorsement of the need for mergers to be well conceived; there are sections instead outlining how it is proposed to protect the nation from mergers which may have harmful results." That is what it is all about. I believe we should have legislation to protect the nation from mergers which may have harmful results and I hope that that is solely what the Minister wants to do, but I am worried because the Minister is reserving to himself the right of having it investigated. That is the major problem I have in this regard.

The CII article continues—and this is where I think there is a weakness— to say: "But of the mergers and acquisitions which have taken place over the past two decades how many have proved detrimental to the public interest? Even outside Ireland the great majority of mergers are in, not against, the public interest." I agree, but there is no use in talking of the great majority if there is a minority against the public interest. Those are the things that should be covered by this Bill. It is always easy to ask: how many mergers have proved detrimental to the public interest at present? Possibly some have; personally, I think some mergers that have taken place in the last two or three years have been detrimental to the public interest but at this stage it would be improper for me, even with the protection of the House, to say publicly what mergers I thought were detrimental in that period and I do not propose to do so.

The CII statement says we should be less concerned with the image of monopoly as such, but rather with monopolistic abuse. I presume, and I hope that is exactly what the Minister is aiming at. He agrees we have monopolies and in some cases this is desirable but from my point of view the less monopoly we have the more desirable it is. I accept that we must have some.

I could not criticise the criterion that the concerns involved must have assets of over £500,000 and a turnover of £1 million. My proposed asset figure was £250,000 but I do not think the £500,000 is too high or too low. The Minister must put in some figure to prevent himself being inundated with applications from the small shopkeeper who wants to buy the shop next door if it goes up for sale. Possibly, in conjunction with my colleagues in the party, by way of amendment on the Committee Stage I shall endeavour to get some provision built into the Bill to ensure speedier decisions from the Minister in the event of agreement and non-opposition to the proposed merger or take-over. The Minister said in his speech that a study of the details of the Bill would show that he had provided certain short-cuts to approval and that, where these could not be availed of and the full procedure must be followed, it was his intention to pursue them with urgency so that decisions could be taken in less than the time limits, in themselves quite short, which were provided for.

One of the things I learned while Minister is that there is no point in the applicant in a case like this quoting the Minister's Second Stage speech at the Minister or at his civil servants if there is nothing about it in the Bill. The bureaucrats—to use a vile word—will stick to the wording of the Act. In studying details of the Bill I could not find that the Minister had provided certain short-cuts to approval and I hope, in replying, he will indicate where I can find this in the Bill, which simply says that if you have assets of over £500,000 or a turnover of over £1 million and you are considering a merger with some other concern, each enterprise involved must notify the Minister in writing of the proposal as soon as may be. When he gets the notification he may reply giving sanction or say that he has not got sufficient information. I do not want to dwell very much on that because there is little point in developing the question without giving the Minister an opportunity to answer. This is one of the points made by CII with which I fully agree.

CII in their document suggest that the figures which are to be the criteria are figures which would typically relate to small firms with perhaps 200 employees, making the point that in the main a 200-employee firm would have assets of over £500,000 or a turnover of £1 million and would come under this heading. This is where I come back to the question of the Minister providing ways to get the matter dealt with speedily. Publicity can affect a take-over situation. The Minister will have been notified. I think it is fully realised and accepted and nobody, so far as I am aware, has ever pointed a finger in this regard, that anything that goes officially to a Department is always dealt with in a confidential way. It is only proper that that should be said. On the other hand, if there is a delay leakages can occur even from firms themselves. It would be very wrong if a leakage occurred and a finger was pointed at the Minister or at his office when they were not guilty. Therefore, the less time there is for leakages the better.

The CII say that a reasonably sized supermarket would have a turnover of over £1 million and make that as a point in opposition to the Bill. The supermarket field was one about which I was worried when I was Minister for Industry and Commerce and it was one of the reasons why I wanted to get this Bill expedited. While we are in Europe and while the CII make the point that the local man has only a diminishing share of the home market as against the big businessman coming from outside, we should use every piece of legislation we can to hold the distributive industry in Irish hands for as long as possible and I will subscribe in any way I can to that. I honestly find that the international supermarkets are more inclined to sell Irish manufactured goods than are some of our own supermarkets. Now especially, when we have an increasing unemployment problem I should like to join with trade unions and everybody else in exhorting people to buy and use Irish products. I do not think the Minister is talking enough on that subject.

Under the heading "Prior Authorisation" the CII say:

Under the Bill, no proposed merger, on the basis of the tests above, will be valid unless the Minister for Industry and Commerce has indicated that he does not propose to prohibit it (within a specified period).

Later on they say:

Given the schedule of criteria (to be discussed below) relating to the appraisal of proposed mergers by the Minister in the first instance, there must be doubt as to whether the preliminary appraisal would not be subject to the vagaries of conflicting political ideologies enjoying support for the time being.

I do not know exactly what is meant by having something "subject to the vagaries of conflicting political ideologies enjoying support for the time being" but I take it that it corresponds roughly with what I said already in relation to the Minister, the political head of the Department, as distinct from the examiner of restrictive practices having a particular view in relation to a merger or being got at which is what everyone is always trying to do with Ministers. That gets back to the question of the notification of the proposals to the Minister. The heading in the old proposed Act was: "Notification of proposals to examiner." The heading in section 4 of this Bill is: "Notification of proposed mergers and take-overs to Minister." This is a pronounced difference. Perhaps the Minister would say something about national policy for regional development. We will be looking for more information on that on Committee Stage.

I have another few words to say which are perhaps more critical of the CII than of the Minister. The CII criticised, and I criticise too, the possibility of taking six months to make a decision. I would like the Minister to bring in an amendment which would ensure that in a standard type application, where there is no basic objection, there would be some sort of built in arrangement so that permission could go out almost forthwith. I am not suggesting that the Minister should sign those things and let somebody else send them out because the Minister must make the decisions. It is all very well for the Minister to say that it is his intention to pursue them with urgency and that the time taken will be less than the time limit. We hope that will be so. The peculiar thing is that while the CII criticised the Minister, as I do, for providing that he need not give a decision for six months they go on to say at page 9:

Where the UK refers a case to the Monopolies Commission the normal statutory period is six months, but may be extended to nine months. In practice this has never happened. The Commission, even in very complex cases, has reported within 13 to 22 weeks. The EEC Commission in dealing with potential pan-European monopolies is seeking a maximum of nine months, but with a preliminary report within three months.

I cannot afford to criticise because I do not think I had a time limit in mind at all but it seems strange for the CII to say that in the UK it has never happened. It does appear, whether the Minister is responsible or whether I am responsible, or some predecessor, that the Department of Industry and Commerce have a bad name as regards getting things done quickly. I understand the relationship between the CII and the Department has been and continues to be very good and I do not understand why the CII should be so suspicious of the Minister. In relation to ministerial powers they say:

It is not clear whether the Minister can, without inhibition, decide to over-rule the Examiner and refer the case to the Commission and over-rule the Commission's views and make an Order independently. Nor is it clear what sort of power is being vested in the Minister by "without prejudice to the validity of anything previously done thereunder".

The report also states that it is not clear what sort of power is vested in the Minister. I share that view and I should be glad to get clarification.

This brings me to my second major point of criticism. In his opening remarks, having spoken about incorporating certain features of his predecessor's Bill, the Minister did not give his reason for having taken the power from the applicant to go to the High Court. The CII have made the point that there are no provisions in this Bill for appeal to the courts. I am glad to see that Deputy Esmonde is here because I do not understand section 12 which is not like the provision I had which would have allowed the applicant to go to the High Court. In this Bill the Minister reserves the right to himself to make the first judgment before he hands it on to the Restrictive Practices Commission. My proposal was that the affected party could appeal to the High Court against the Minister's order. In this Bill we have a section which leaves the power to the Oireachtas, subject, of course, to the 21-day sitting provision. The Minister could make the order in the middle of July and nothing could be done about it in the normal course. We know the practicalities of such a situation. There is nobody better than the Parliamentary Secretary to the Taoiseach to tell us that it is so many feet going through the lobbies.

To my mind it is a retrograde step to take the right of appeal to the High Court from the applicant. All the Minister needs to render his order effective is to get a majority in the Oireachtas. I have never seen an order or a Bill, with one notable exception, introduced in this House that did not get the majority of feet to go with it. Nobody can seriously accept the ostensible reason for the taking away of the right of appeal to the High Court as the Minister has done in this Bill.

I have given my own views on the last page of the CII circular. In it a number of points are summarised. No. 1, mergers must be encouraged. This Bill inhibits them. That is a serious statement. They should say really that some mergers, or most mergers, must be encouraged. Quite a number of mergers must be encouraged and I am sure nobody agrees with that more than the Minister and many of his officials. I accept that the Bill could inhibit necessary and commendable mergers. I hope that on Committee Stage the Minister will spell out more clearly as to how he will shortcut facilitating necessary mergers.

No. 2, the turnover limits for mergers should be of the order of £20 million to £30 million and not £1 million. The EEC proposed legislation suggests £80 million. I agree with the Minister's proposed limits. By order he can change the limits up or down. However, I do not see any need to talk in terms of reducing limits. The Minister must, of course, have flexibility.

The third point is that the decision period should be three months' maximum from the date of notification and not the nine months proposed. All I can see is six months. However, I would go along with that. This extension is by way of safeguard. The Minister might amend the Bill by scrapping the second period—not exceeding in the aggregate six months. This is a case of the Parliamentary draftsman and the departmental officials trying to visualise every eventuality. I believe the Minister should cut out this extra period. It is quite clear there will not be many mergers meriting this type of attention.

He should certainly not hold back desirable mergers. I agree with the Confederation of Irish Industry in this. They say legally binding clearance should be given within two weeks where there is no decision to refer the case to the examiner. There is a contradiction as between what is in the Bill and the Minister's Second Reading speech. I think the Minister has made a note of that and I am glad I drew his attention to it. The Confederation also say that the Minister should not be given power to vary the turnover limits downwards. I believe the Minister should have power to vary up or down. We might get a change of Government and we might have deflation; costs and prices might come down.

Mr. Esmonde

That is a new one. Would the Deputy tell us how it will be done. I have heard fairy tales. I supuse this is artistic licence.

Mr. Lalor

I do not think one should encourage levity in this debate. Finally, the Confederation maintain that firms should be allowed to appeal to the High Court. I fully agree. I endorse the two points—legally binding clearance within two weeks and appeal to the High Court. I do not like the idea of a decision becoming a legitimised order if it is not annulled within 21 sitting days of the Oireachtas. I do not say there is anything sinister in this, but the impression is created that there is something sinister in it. I can well understand the Minister being worried about going to the High Court. Presumably the order would be implemented until such time as a decision was given by the court. That decision might not be given for two years. I wonder is the Minister constitutionally correct in this 21 days.

If a firm endeavours to take over another and the Minister steps in and says: "No, you may not" the courts have always provided protection and, if the affected party feels that the Minister has been unjust, he has the right to go to the courts, the independent authority, apart from the Houses of the Oireachtas. I was making that provision in my Bill. The Minister is taking that right from him. I do not think he should.

If that is what the Minister meant by talking about putting more bite into the legislation, he is putting what the Parliamentary Secretary to the Taoiseach would describe as more feet into the legislation, more feet going through the lobbies to grind him down. The Minister is taking from the affected party the right to go to that independent court. In dealing with an order made by a Minister I do not think that, by any stretch of the imagination, the Dáil and Seanad can be called an independent court. I do not think anybody could agree with me more than the Parliamentary Secretary to the Taoiseach.

Mr. Kelly

I know that Deputy Lalor is personally open-minded but, if his party would permit him to be more open-minded in regard to reforming parliamentary proceedings, that rebuke levelled at the Dáil might not be justified.

Mr. Lalor

We could go off on a tangent here.

An Ceann Comhairle

We had better not.

Mr. Lalor

I have already indicated that if I had any basic opposition to this Bill I was immediately disarmed by the Minister inferring that he was indebted to his predecessor for most of it.

Mr. Kelly

Did he say that?

Mr. Lalor

I am shattered to find that the Government Whip is wondering what my position is. About 18 months ago the Minister said he would not introduce this Bill but that he would introduce one with far more teeth in it. There is a little more in this Bill on monopolies, but the major differences between this Bill and my Bill is that the Minister has given himself, the political head of the Department, the power rather than the Examiner of Restrictive Practices. Having made his own Order, the Minister retains the power to steamroll it through, because it is effective unless it is annulled by a majority in the Dáil or Seanad. I proposed to leave that to the decision of the High Court. He has done the wrong thing under both those headings. He has made the Bill more effective from the point of view of the political head of the Department but it is less fair.

The applicant for a merger or the person accused of having created a monopoly has to come to somebody on the Opposition side to try to upset the order. No matter how strong a case the Opposition make against it, and no matter how they justify their case, they have to back it up by force of numbers. The people on the Minister's side will back him and, no matter how wrong the order is made to appear, the Minister will steamroll it through. This is not a proper proposal to have in the Bill when the alternative would appear to be the ideal and the guidelines were there for the Minister.

Mr. Esmonde

I support this Bill. Deputy Lalor referred to section 12 and asked what its meaning was where it makes provision for an application to a court of competent jurisdiction to grant an injunction on the motion of the Minister or of any other person. That is purely for the purpose of enforcing any order made under section 9 of section 11. Section 9 deals with orders prohibiting proposed mergers or take-overs and section 11 deals with an order by the Minister prohibiting the continuance of a monopoly or requiring the division of the assets or otherwise of the concern found to be a monopoly.

I want to deal with a criticism levelled by the previous speaker, namely, the right of access to the courts. He asked: "Why the Oireachtas instead of the High Court?". Under section 9 any order made by the Minister must state the reasons for making the order. I should imagine that, if the Minister made an order without stating the reasons, that order could be set aside by the courts, without making any provision for such application to the courts as it could be an inherent right which the aggrieved party could avail of. In a Bill of this sort it is right that the Minister should take the power he has taken. These mergers and take-overs could very greatly affect the day to day economic life of the country and would certainly impinge upon the area for which the Minister is responsible. I support the Minister's approach to this matter.

I reject the snide remarks made by the Confederation of Irish Industry in referring to ideologies. I could make some rather rough and rude remarks and I could use some descriptive phrases concerning this document issued by the Confederation of Irish Industry, but I will desist from doing so. It is a very peculiar document and obviously it was drafted by a person with a very peculiar mind. I wonder whether the person who drafted this document, which has been circulated to Deputies, drafted it with some ulterior motive. Certain passages in it do not make pleasant reading.

Deputy Lalor referred to the length of time taken in reference to an application to the Minister where there was a proposed merger or take-over. These mergers and take-overs deal with assets of over £500,000 or, alternatively, with a business which had a turnover in the last financial year of at least £1 million and over. These matters should not be treated lightly. One must anticipate in the circumstances that there will be a great number of people concerned about their employment. There is an attitude of mind abroad in certain industrial sectors which deals with their responsibilities towards their employees in a light and cavalier manner. That would not be the attitude of the present Government.

The Confederation of Irish Industry seem to approach the matter on the basis that there is a provision for redundancy payment for people who lose their jobs. That is a slightly inhuman approach. Possibly the people who have written the document cannot help themselves. Where a redundancy payment is made, the State provides money towards that redundancy payment from the redundancy fund. That, in turn, means that the taxpayer must foot the bill. I do not see why a merger or take-over should be looked at purely in the light of facilitating the particular interests of the parties to the merger or take-over. They have the responsibilities to society like anybody else. As they are a part of society they must play their part. To criticise the matter on the basis that the Minister might delay coming to a decision, is a lot of nonsense. The Minister has clearly stated the principles which will guide him when he is making his decision. He has assured the House that he would like to expedite, where-ever possible, the making of his decision.

One must also bear in mind that there are a number of businessmen who like to hide their cards up their sleeves. They will give notice to the Minister of a proposed merger or take-over but give only some of the facts. If they gave the full facts the Minister would be in a position to make a quick and immediate assessment. Because the Minister does not get all the facts, this will give rise to further queries being raised by the Minister and further time will have to be spent dealing with the situation.

One can take the analogy of the average sale of property here. When a vendor and purchaser sign a contract and the closing day is supposed to be three or four weeks hence, by the time the sale is closed about two months have elapsed. That might be a private deal concerning a small part of a property. If one is dealing with assets of £500,000 and upwards, or with a turnover of £1 million and more, one is dealing with something which is very substantial by Irish standards. This Bill deals with Irish circumstances and the necessities of the Irish situation.

I find it hard to accept the CII's attitude which says that this Bill is not necessary and then says:

To turn, without prejudice, to more specific aspects of the proposals in the Bill;

They are pleading in the alternative. This is similar to a lawyer's contrived pleading. It lacks a certain genuineness. The Confederation of Irish Industry critised the turnover criteria and in its place suggested that the appropriate figure should be, say, of the order of £20-£30 million. This is in the Irish context. Was this document drafted by the Irish Confederation of Industry or did it emanate from Europe or England? I have always given very careful consideration to the views of the CII. In the past I found many of their publications extremely helpful and very good. Having received this document I will, in future look very carefully at any documents they may think worthwhile circulating to Deputies.

The report continues:

It must be seriously questioned whether the Mergers & Monopolies Bill, as presented, is necessary at all.

We have no protection, no machinery to deal with mergers. Therefore, in my view, this Bill is necessary. The report goes on:

Analysing the document one may express surprise that there is no endorsement of the need for mergers to be well conceived; there are sections instead outlining how it is proposed to protect the nation from mergers which may have harmful results. Bearing in mind our objective of a solid and growing Irish industry this represents a curious imbalance of emphasis.

This, in my view, is another contrived interpretation of the Bill. CII made no reference to section 8 (3) which refers to the common good and which must be considered in any proposed merger; more evidence of a very biased interpretation.

The report continues:

Strong governmental concern about monopolies is understandable —but this has little, if anything, to do with mergers

Anybody who has taken the trouble to read any of the law reports of the European Court will clearly see that there is a very close link between mergers and monopolies. This point has given rise to new proposed regulations on mergers and the new regulation dealing with concentrations of commercial activity on the Continent. The report also says:

Under the terms of the Bill, mergers which may be genuinely desirable will be inhibited without remotely approaching the characteristic of monopoly. That, surely, cannot be the intention. We should be less concerned with the image of monopoly as such, but rather with monopolistic abuse.

I wonder if the writer of that paragraph took the trouble of reading or examining the Restrictive Trade Practices Act of 1972. There is quite a difference between trying to sort out an established monopoly and preventing a monopoly before it gets off the ground and causes trouble in its passage.

It says here further:

It is restrictive to think now in terms of any company's share of the Irish market...

Apparently, according to the writer of this, the Irish consumer does not appear to have any real rights. He is not considered in this picture. It goes on to say:

The rejection of the control of mergers policy as proposed does not mean that an abuse of monopoly policy need also be abandoned.

I think it extremely difficult to view either of those facets of possible activity in isolation. One has to bear both in mind when considering a merger.

I dealt with the matter of the numbers. Another matter that seems to have been lost sight of by the authors of this peculiar document is the fact that Irish industry has come a long way. Irish commercial activity has become far more attractive and made great strides. Therefore, obviously it is a subject that would attract. I think Deputy Maurice Dockrell put it very well: sweet-tasting little trout can be very attractive to a foreign pike. That brings me to another aspect of the trout and pike. Anybody knowing the pike will know that its teeth are so shaped that once a thing goes down its gullet, that thing cannot be got out again. The Minister has obviously borne that factor in mind because under the terms of this Act we are going to prevent an undesirable merger taking place. That is in line with European thinking because that is the way the European regulation will be effected, whereas in England the merger can take place but then somebody complains and the whole business has to be unscrambled.

Imagine that sort of situation occurring in a country like Ireland which is in the development stage only. Imagine the traumatic effect that that would have on Irish social and economic activities. The country just could not take that type of occurrence. Therefore I think it far better to use the doctrine of prophylactic rather than cure when dealing with a situation of this type. This is the line the Minister has taken and, I believe, rightly so. The English situation is quite different. Theirs is a developed, commercial community. They have various structures. They have a sort of inbuilt early-warning system, through the finance market, through the merchant banks and take-over specialists. We have not got that type of structure except in a very modified way.

I note a matter which, again, causes me to doubt the genuineness of the CII, although a lot of their points are very helpful, very true and very just. But this is a body one would imagine would be expert in its approach to a matter like this. If they were making a case to try to genuinely convince us of the strength of their argument, one would feel they would be a little more forthcoming, that they would give us the full picture. But I find there is no reference whatever here to the new phenomenon—I suppose it is not all that new; it is a very common occurrence nowadays—the activity known as the creeping take-over, the partial, slow, diverse purchasing of shares done through diverse channels, a sort of hidden take-over. There is absolutely no comment made on this aspect of take-over or merger activity whatsoever. They seem to assume that Deputies are simpletons, that a merger or take-over is something that happens in one fell swoop and quickly, that it must be a matter of great speed and must be done in a few moments. There are several Deputies who have had the experience of having been involved in take-overs. A document like this does not fool us. In fact it annoys me to receive a document of this type which talks about time-tables and that it should be possible to get a legally binding clearance from the Minister within two weeks. I regard that as rubbish and it should be taken as such.

They refer to the matter of there being no provision in the Bill for appeal to the courts—I have already dealt with that—and to the fact that any person who feels himself aggrieved would naturally have a right to a declaratory action to satisfy the Minister's order under the combined provisions of the normal principles of law and the statement in section 9 (2) that:

An order under this section shall state the reasons for making the Order.

If the Minister does not do that, if the Minister puts in wrong reasons, likewise his order is subject to review by the courts. It is a well-known principle and has been applied in other matters before, in town planning and so on. There are plenty of examples both in the English and Irish Law Reports of that matter.

I am very much in favour of this Bill. It has been long overdue. Without it we were only half dressed, legally speaking, when dealing with a commercial transaction. May I be forgiven by the Minister for firing a few blanks across his bow. This is done on the basis of constructive criticism because I think it might be of some help. I do not expect the Minister to deal with them on Second Reading but I should like to get in the ideas before Committee Stage.

Major de Valera

How do you fire a blank across a bow?

Mr. Esmonde

Well, it is virtually a blank because there is no target. Is that not so?

Major de Valera

Then why shoot?

Mr. Esmonde

I mentioned the question of a creeping take-over bid. There should be a little bit of attention paid to that aspect of the matter. I know that the Bill, in section 1, subsection (2) (a) says:

For the purposes of this Act, but subject to section 3, a merger or take-over shall be taken to exist when two or more enterprises, at least one of which carries on business in the State, come under common control.

Then "common control" is defined. This might be an on-going process and it may suit the Minister not to define it more accurately. There is a penalty section which states that notice must be given to the Minister regarding a proposed merger or take-over. In the case of a creeping take-over, the Minister might have a little difficulty in deciding at what stage to use his powers. Some thought might be given to this aspect.

Business has made great strides and much has been due to a combination of the ingenuity of lawyers and of businessmen. When an Act states something must or must not be done that is when the Irish genius for getting round the matter comes to light. It is a kind of challenge to an Irishman's ego to get round the difficulty. The manner in which this Bill is drafted makes me fear that when control is mentioned what is meant is shareholding control.

Because many of the firms in Ireland are family companies the asset content is unduly high having regard to the income derived from them. Therefore, these businesses are attractive from the point of view of a purchaser or a person or group seeking a take-over. Another facet of the Irish character is that people do not always observe too accurately the recording of their shares, where they are owned or held. Ultimately it ends with the directors under their power of sale and articles of memorandum selling the assets and getting rid of the business or part of it in this manner. I do not think it would cause too much trouble to have a clause in the legislation to cover that kind of merger or take-over. The word "merger" or "take-over" might not strictly apply but, in effect, this is what happens.

The definition of "subsidiary" refers merely to equity capital. Because of recent Finance Acts and the provisions regarding revenue with which people have to struggle and contend particularly with regard to farm tax, other types of shares and ordinary equity have been used. The Minister may be putting himself out of court if he merely leaves it with equity shares. In this country there is much dealing with private companies. Articles and memos can make provision for extraordinary things, such as pre-empting the rights of a shareholder, possibly to buy the assets of the company. Such a person might be used as a stalking-horse for a take-over bid by getting the assets in that manner. It may sound far-fetched but it is not beyond the capability of those who want to get around a situation where there is a likelihood that the Minister would not smile on the proposed merger.

The question of debentures can give rise to trouble. They are not regarded as shareholding, nor are they regarded as making their owners members of the company. The debentures could be so geared in size and quantity that the actual debenture holders really own the company by virtue of the amount of money they were supposed to have lent or the amount for which the company was supposed to be indebted to them. This might be another avenue of escape. It might be necessary to enlarge the question of ordinary business. In connection with this matter I refer to section 1 (2) (iii) (C).

Section 4 (2) states:

Where, having received a notification under this section, the Minister is of opinion that in order to consider for the purposes of this Act a proposed merger or take-over he requires further information, he may, within one month of the notification, request such further information in writing from any one or more of the enterprises concerned.

Section 5 makes provision for extending the period as the Minister considers necessary, but not exceeding in the aggregate six months. The extension is related to the situation where further information is required. If it is necessary for the Minister to go back several times for information, from what date does the extended period apply? This point may need further clarification.

Section 4 (3) (b) states:

For the purposes of this subsection the person in control of an enterprise shall be—

(i) in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention,

It might be necessary to make provision for a situation where there are already court proceedings: for example where the liquidators receivers or, in the case of partnerships, the official assignees, are acting in an official capacity they should not appear to be committing criminal offences. There might be difficulties with regard to a partnership that continues after the death of a partner where his share may go to a person who has not taken out representation or where there is an intestacy. However, that is a difficulty that could be overcome. Likewise, a sleeping partner should not be made responsible. The Minister will have quite an amount of difficulty in the Irish context because a large number of the take-overs will involve private companies so that the situation will be different from that which exists in England, for example, where there are quoted companies and where certain disciplines would be observed by these companies but which are not observed in the case of private companies. The stock exchange has no jurisdiction in relation to private companies. This criticism from the CII when they talk of a time-limit is sheer rubbish. I would imagine that the Minister would have considerable trouble in getting the facts on to his desk so that he might make a decision one way or the other.

I notice that "enterprise" refers only to a person or partnership engaged for profit. I could visualise circumstances in which a non-profit making concern would be vitally necessary to a business, for example, a subsidiary or some type of commercial activity which might not be run for profit but the activities of which, in the ultimate, might be of benefit to a profit-making concern although it could not be traced as such.

Paragraph (b) of subsection (2) of section 1 states that:

Enterprise shall be deemed to be under common control if, in respect of each enterprise, the same person or persons can determine how it shall operate in relation to any one or more than one of the following— (i) production, (ii) distribution, (iii) employment, (iv) purchases, (v) sales, (vi) prices or charges, (vii) investments, (viii) profits.

What about goodwill? It is something that is difficult to define and which gives lawyers a lot of trouble but it should be listed here.

Major de Valera

When I made the remark to Deputy Esmonde about the futility of firing blanks I did not mean to be offensive. I think the Deputy will appreciate that. What I intended to convey was that the Deputy should have no need to apologise for making points and for a constructive criticism of a Bill such as this. A lawyer of wide experience is able to contribute very constructively to Bills of this nature. Lawyers, such as Deputy Esmonde, are in a particularly favourable position to help the House because they are independent and, at the same time, they are thoroughly experienced in a varied way. While I do not agree with everything the Deputy said, the points he raised merit the Minister's closest personal attention. A Bill of this nature can very easily pass through the House with almost ritualistic gestures although it is a Bill that is of vital importance to the community.

I am glad that the Minister has introduced this Bill. There is no point in going into its antecedents. The Bill is in succession to the 1972 measure. It is a Bill which, in the context of the problems with which we are dealing, ranks not only as a major document in the field of industry and commerce but a major document both in the course of the economic politics of the country and in the business of the House. Because of this, perhaps the Chair will permit me to take a broader canvas than has been taken so far in the approach to the Bill but to dispel any doubts, let me say, that, like Deputy Lalor, I am in favour of the Bill.

The Bill is of unusual importance in that today through the whole of what is called the West or, if you like labels, the democratic communities, there is a super-structure to our political and economic life which is developing in a way that threatens to remove control from Parliaments and Governments. To balance that statement one must say that the Western system has also its virtues. Certainly, it has had the virtues that promote growth, expansion, technology and so on and it has the further virtue of having been built on the concept of democratic freedom, the concept of the rights of human beings to develop both individually and in proper associations. Therefore, when I say that there is reason for concern and criticism we must remember also that there are virtues in the system that we know. In contrast to the West there is the East and there, too, there is a system which, when viewed objectively, has its virtues as well as its drawbacks. Sometimes one is inclined purely from an academic viewpoint to remark that it is a pity that we cannot merge the two systems, getting rid of the drawbacks on both sides and retaining the virtues.

What is the danger in the developments that are now taking place in the West? I see it this way: Up to our time the various commercial interests—mainly companies—were essentially productive units, organisations of human beings, that were producing something and were engaging in a competitive economy. This stimulated growth. But what is happening in our day? This system has acquired a superstructure. You have now a structure where there is an upper financial deck which deals with the individual production companies, the real organisation and the real sources of wealth, as if they were a form of cypher. You have this uniting at the top of a large number of companies which are the real units. Then it becomes a paper activity and the power follows to that level. I may not be making myself very clear as it is very hard to explain in a short way an idea like this.

The practical result of this is that when you have the power accumulated on a level like this, which is divorced from the reality of the factory, of the production of real wealth, of the individual manager and the individual worker, then it is a short step—and one which, I am afraid, is taking place—to have the power pass from the representatives of the people to this level. Governments and Parliaments then become puppets of an overall financial or economic structure. I want to say this without any reflection whatever on the individuals involved in this but if you have the economic power concentrated in this area, having escaped from the democratic process, then democratic Governments become powerless to operate. It is because of the menace of this situation that I welcome the appearance before the House of such a Bill. We can at least discuss it, analyse what the problem is and try, as far as we can, to get a solution.

I am afraid I must temper that lofty aim by the realisation that we are only a very small area in an environment dominated by this kind of thing. The unfortunate Minister of the day, whoever he is, will have to take into account the realities of that situation. All of us must do likewise. This gigantism at the top, the depersonalisation of human activities and the concentration of the power at that level must give rise to a lot of the troubles of modern society. If you have this kind of thing happening then labour organisations and the trade unions have little option but to develop on the same level to try to be big enough in this. As you see in England, there again you have a concentration of another type of power to the detriment of the Government. This follows from the other.

The consequences go further because then it means that people must demonstrate violently or semi-violently to assert themselves because the machines at top level become overpowering. The Chair is looking at me and I feel I may have wandered a little bit far in analysing this further. It would be better if the real unit, the production unit, the factory, the company producing and functioning, its management and its workers were less dominated by such a superstructure and that a freer and healthier form of competition operated.

It is with that in mind that I approach this Bill, and also with a certain trepidation, because notwithstanding anti-trust laws one sees what happens today in the United States. The Minister, I am sure, will not take it as slighting when I say that he, like every other Minister in the Government, is more and more becoming subject to the compulsions of these economic factors. Furthermore, we are all faced with agitations, the natural reactions and the natural attempts of people at the lower levels to assert themselves and even survive.

To summarise this part of what I want to say, this is an issue for the reality of democracy. I ask the Minister and his Department at the outset to keep in mind that the Minister is the guardian of the democratic rights of the community and the individuals who make up that community in a very real way. The officers in his Department and his advisers are the people who must help him to discharge that onerous responsibility. Deputies have an onerous responsibility to be watchdogs in this regard and to help the Minister, whoever he may be, in his approach to this matter. This is why I welcome an analysis such as the one Deputy Esmonde gave. I hope when it comes to the Committee Stage of this Bill that he will contribute further. He need not apologise for his criticism. No Bill can be perfect when it is introduced. No first proposal is ever unamendable. I am sure, if we all set our minds to it, we could help to make this Bill a better one than it is coming in. That should be the fate of every Bill which comes into this House.

After introducing my contribution with those generalities I should like to get down to something more specific. I find a problem in our local context, which I think the Minister and his Department will have to resolve. I refer to the conflict which must take place in the economic context at the moment when there are the difficulties we all know, about which I need not expand, the difficulty of liquidity for business, the difficulty of surviving and of maintaining employment in the present situation. Incidentally, as an important aside I sympathise with Deputy Esmonde when he talks about the solution of matters by redundancy pay. An individual has the right to ordinary human activities and not to be paid to die. Redundancy pay is only something to tide one over. A man has the right to live, something more than the right to survive.

Coming back to my main theme, we are confronted with the conflict between rationalisation, business efficiency, economic survival both for the individual company and the whole community in the group of States in which we are, the conflict I see between the aim of rationalisation and the social aims on the other hand of maintaining people in employment and gainful activity and of using the natural forces of competition to solve such matters by good straightforward commercial competition which has been proved to be one of the best price controls, although the Minister may not agree with me. If you listen to certain radio programmes prices are sometimes quoted and it is rather interesting how prices come down to the lowest one. Let us not, therefore, treat competition as a dirty word. It is a very useful element but as against rationalisation on one hand you have the social requirements of employment, competition, incentive and so on. One could make a list on both sides. Suffice to say that here you have a dilemma for anybody approaching this problem. I am sure the Minister and his advisers were not unaware of that on the first day they considered the content of this Bill.

Rationalisation is of great appeal to the manager, to the person who reads balance sheets and to the process of survival and getting the wherewithal to survive. On the other hand, if one can bring about a stimulus to activity in the long run that will be of greater benefit to the community. To analyse that matter further would take me over much of the ground covered by Deputy Esmonde and perhaps the Committee Stage will be a more appropriate occasion for some of these points. But I should like to remind the Minister that the need will arise constantly to face the conflict between rationalisation and the other aims embodied in this Bill. Rationalisation can be and often is the potent argument, almost a compelling argument, for mergers but it may not be the best thing socially or economically for the community. I find it very hard to see how anybody can ever justify a merger unless it is on some such basis as rationalisation so as to get more efficiency.

We have much experience of the much-condemned capitalistic system which shows that a freer form of competition, more activity by the entrepeneur and understanding cooperation by the workers can give very useful results even under unexpected circumstances. Here, in the past few years we have suffered less up to the present—the crisis is upon us now—in this kind of economic activity. I would put this down to the fact that the bulk of the employers and managers had their feet on the ground and were not merely coping with chits and balance sheets and so on at a higher level but were dealing with the real production problems and on the other hand, to the trade union movement particularly and at its top the Congress played a very responsible role. Rationalisation, therefore, can be a very dangerous thing and the real threat to making effective legislation of this kind will be an appeal to the same rationalisation.

I should like to say to the Minister: why not face the matter directly politically and let the Government have the courage and determination to give a positive lead in these matters realising that any positive lead will be opposed and there will be dissent, rather than falling back on the device of commissions or advisory bodies? In all my experience, such as it is, the State service has been as good a source of information and advice and judgement as any other provided the political side made its proper contribution. In another context, I have felt it necessary to talk about this particularly during the debate on the new Department of the Public Service, the role of the two sides in the making of democratic Government function.

We have a first class Civil Service. Let us keep it that way. If there has been a deficiency at all it has been on the political side. I am asking the Minister now to give a lead here, to bring this House into this and let this House do its proper job. I am convinced that between the regular Civil Service, the regular organisation of the State, the democratic institutions of this House and the Government we can do a job in this country. If we evade our responsibilities and pass them on to ancillary bodies too easily or if we succumb to the temptation to look for others to make decisions for us then we upset the balance, the results will diverge from reality and that means trouble. I am not suggesting for a moment that we should not seek the best advice we can get elsewhere but in spite of the things that certain people say about this House it is representative of the community. If the Minister wanted an informed opinion on certain aspects of the matter, he could not have got better than the advice offered by the speaker who went before me. This House is competent to support the Minister on this. Whatever we may say about each other at the hustings, on the ministerial benches of this House in all the time I have known it there have been people who would match against any board of directors anywhere, any group of academics or anybody else. Let us not hide our light under a bushel. We can do the job.

I am asking the Minister to give us a lead by stating the policy for the implementation of this Bill. Let it be said, as it used to be said in the past, that what a Minister says in a speech in the Dáil means something and is a lead to his own officers, who will loyally support him in his Department, and to everybody else. Of course, if his policy is not acceptable that will be changed by the electorate in due course. That is the proper democratic process and that is as it should be.

I commend this question of rationalisation as against the other method which cannot but be in conflict with individual cases that will arise. The Minister will have to approach this on a public policy basis because if it is approached on any other basis the consequences could be very serious for democracy and for the morale of all concerned. I do not know whether the Minister feels as I do that those considerations are relevant but I cannot understand the Bill if they are not. It means that when it comes to a question of dealing with a merger or a monopoly, and as Deputy Esmonde said they are so closely related that they cannot be disentagled, the Minister will have to make public decision.

I ask that this decision be a ministerial decision. I am not excluding his Department but I ask that it should be a ministerial decision and not a decision of some group to which it is referred. I do not want to see the responsibility passed off. I am asking that the Minister and his successors will assume responsibility and will have the courage to carry it. I hope the Minister will not take that as a reflection on himself or anybody else. If that is the approach then, with the necessary brake, because I can see it will be necessary to control tendencies to monopolies, we can hope for results.

I have asked that the Minister make the decision. Now I will go with Deputy Lalor and suggest that it would be wiser to let the appeal be elsewhere. I know this is a matter for argument and I know the difficulties. We will come back to this on Committee Stage. Let the Minister make his decision. I do not think there would be any stepping down if there was an appeal to modify that decision. It would be a great safeguard for the Minister, for his officers and for this House to have such an appeal. I am asking the Minister to consider what Deputy Lalor said about an appeal to the High Court. I see the difficulties and objections to this and I can sympathise with an executive officer of the Minister's with the frustrations that legal procedures may cause. I was, for a period, a servant of the State and I know the feeling well. But in the interests of the whole lot, some form of true appeal should be provided. I mean an appeal from the Minister. There should be some independent appeal, and it is here I would comment that it is too administratively convenient that a nullifying document should be laid before the House. As the Minister knows, the structure of the political party system is such that when it comes to the ringing of the bell, the Whips will call the roll, there will be a marching into the lobbies and it will ultimately depend on whether the Minister now in the House is the Minister. That seems to me to nullify the whole idea of an appeal.

I am still confident—I do not think I should use the word "still"—that the Minister and his advisers are of unquestionable integrity and that they have come to the conclusion they have to the best of their lights, as they have seen them. That being so, there is no reason why the appeal should not be in the light of day. Whichever mechanism is adopted, some form of independent appeal is desirable. As Deputy Esmonde has said, we Irish in certain situations are not inadept at using our imagination and our skills to circumvent something.

Therefore, I urge the Minister to consider carefully the insertion of a provision here for a real appeal. Anyway, I think it is an insult to the House to offer us a provision to nullify an order of the Minister within a certain time because this reduces the House to a question of who commands the majority. That is in practice. Perhaps it is a sad commentary but then parliamentary democracy is not perfect.

Deputy Esmonde mentioned creeping take-overs. What he said was well worth listening to. He spoke about asset stripping. That is also something to think about. Now, to come to the Schedule, there is mention of criteria to be taken into account for purposes of section 6 (b) and section 8 (2)— this means criteria to be taken into account when a report is being made to the Minister to guide him in coming to a decision on the case before him. I take it the Minister is free to accept or to reject a case like that. I mean that if my first condition is satisfied the Minister is still free— that we are not delegating power to anybody else.

Mr. Keating

We are not, in the end.

Major de Valera

That is what I mean. What I mean is that the Minister will have the right of decision——

Mr. Keating

Yes.

Major de Valera

——that he can ignore, or, rather, go against the recommendations, if he so wishes.

Mr. Keating

He must give his reasons in the order.

Major de Valera

For going against it?

Mr. Keating

Yes.

Major de Valera

That is something I might like to argue about on Committee Stage. From one point of view I would almost prefer to see the Minister standing up and saying: "I think this is the right way to do it" and to see him defending himself'. However, that can come on Committee. Granted that the power of decision remains firmly in the Minister's hands, the Schedule states:

(a) The extent to which the proposed merger or take-over would be likely to prevent or restrict competition or to restrain trade or the provision of any service.

Frankly, what I should like to see in that, although I can see the difficulties, is some provision for the general national interest. I feel paragraph (a) is somewhat restrictive; but if the Minister is prepared to say he is reserving the other right to himself and is prepared to stand over it, it is another matter. There are other broad social matters I could think of besides the prevention or restriction of competition, the restraining of trade or the provision of a service. I think that is a bit narrow. Paragraph (b) states:

(b) The extent to which the proposed merger or take-over would be likely to endanger the continuity of essential supplies or services.

This proposes a classic problem. I shall go back a long way. When bodies were set up to control prices in the past, a problem arose. If an interest was big enough it could thumb its nose and it was found that such things as the supply of very essential services and commodities, often imported, was in effect not subject to price control, whereas price control and restrictive practices were exercised minutely on some smaller businesses or activities which were not in a position to retaliate so to speak. They were the justification for the legislation, but this in a sense involved gross unfairness. This is a danger in approaching a matter on this basis of essential supplies and essential services. A specific example quite some years back was where the pharmaceutical trade was subjected to all sorts of restrictions and there was at the time another much larger business in a position to cause considerable disruption and that much larger business got away scot-free before the same body. There must, therefore, be an element of fairness in this.

(c) The extent to which the proposed merger or take-over would be likely to affect employment or would be compatible with the national policy in relation to employment.

One of the things that distresses one is this impersonalisation of economic activity to which I referred at the outset. It has made people less conscious of their individual risks and one has the fear that the workers themselves may not always be sufficiently alive to their own long-term interests. The bait, whether financial or otherwise, may lull them into a sense of false security. Anybody considering paragraph (c) should not only advert to the points made by Deputy Esmonde but should also advert to the long-term interests both of the people immediately affected and of the business activity concerned from the community point of view.

(d)—this is obviously something that comes to mind at the moment with so much talk about regional development. It calls for no particular comment.

(e) reverts to the point I made by itself because I thought it so much more important than the others: rationalisation in the interests of greater efficiency in the operations of the industry or business concerned. Rationalisation and efficiency from an accountant's point of view may be all very well but it has an extraordinary way of bringing counter-effects. One may think one is getting rationalisation, or efficiency, or economy, and one may find that one is condemned to unproductive waits because of labour disputes, lack of co-ordination, failure to appreciate realities on the shop floor. All the things specified in (e) constitute the real dilemma in trying to make this Bill workable. It is under this head that the Minister and his successors will have most trouble. It is under this head they will have the greatest difficulty in deciding what decision to make, whether to say "Yes" or "No".

The test must be viability. Every step must be taken to secure viability but, after that, the social aims must give way as far as possible to the accounting aims, if one may put it that way.

(f) calls for no particular comment at this stage.

(g) is a matter of common justice. Incidentally, as Deputy Esmonde pointed out, the interests of shareholders are often not adequately provided for. Remember, it is not only the workers who are concerned here. I have made a plea for the workers and, by workers, I mean everybody employed from the managing director down and now plead for shareholders, the people who have invested and are carrying the risk, the people who are very often the victims of this gigantism I spoke about earlier. It is most important that their interests would be taken into account in considering any proposed mergers.

(g) and (h) go together; they are summed up in what I call the social aims.

A little disjointedly, perhaps, I tried to convey to the Minister something of my personal approach to this. I fully admit to a certain unease observing the financial superstructure that has developed in the whole of our western economy; the productive units are mere ciphers; humanity tends to be forgotten and social aims can be evaded on the grounds of rationalisation and efficiency. It is really this that prompted me to talk. It seems to me that the working of democratic institutions, the controls and powers of government and of democratic parliaments are being seriously threatened by super-commercial operations of a certain type. It is a sad commentary on the world today. It is salutary to think of what could happen with these elements at work in the field of supply, of fuel, energy and so on.

Naturally I do not want to bedevil this debate or say anything that might be unhelpful. If democracy is to work, if the people are to share in making their own lives, this Bill is important and I hope on Committee Stage there will be a very thorough examination of the Bill. I hope, too, the Minister will take criticisms and suggested amendments in the spirit in which they are offered.

The Minister and his Department should not be intimidated by experts, pundits, large anonymous interests or anyone else. They should realise that under this House they are the repository of authority, power and responsibility for protecting the people so far as they can. I know it is a formidable task particularly since, as I said at the beginning, we are a very small pool in a very big sea where the environment is adverse. Nevertheless I should like to see the Minister doing his best. I look forward to hearing from him a clear enunciation of policy in regard to the problems of rationalisation and the other matters I mentioned. He will not lack support from both sides of the House for a constructive Bill dealing with such a vital problem.

Mr. Staunton

I am glad to have the opportunity of making a few remarks on this very important measure. I read the Bill carefully and I also read the comments in today's newspapers. I know there are certain objections and I might have agreed with these certain objections had I not had the wisdom to wait to hear the Minister's speech. I should like to compliment him on his speech. It was very necessary to put the issue of mergers, take-overs and monopolies into perspective. I was particularly glad—I will refer to it in greater detail at a later stage—that the Minister spoke about the positive advantage of rationalisation in certain instances, of mergers in other instances, and the getting together of undertakings for many reasons which he spelled out.

The Minister is positive in his approach. He has been misinterpreted by some of his critics because of the nature of the Bill. The Bill is restrictive where it is necessary to be restrictive. A Bill which is restrictive makes fairly gloomy reading for people who want to see development and progress. But the Bill must be read in conjunction with the Minister's speech. In dealing with the Bill I hope the media will emphasise the Minister's positive approach to rationalisation as well as the contents of the Bill to strike a proper balance.

I should like to compliment Deputy de Valera on many of his philosophical comments about the background to the Bill and to industry and about the degree to which the Government could become a puppet or, in his words, the degree to which a democratic Government can become powerless. This can happen unless you have primacy of politics and primacy of Government. Essentially this is what this Bill is all about.

It is important to put certain matters in context. In my view the Government have been misinterpreted on more than one occasion on their attitude to industry, business and commerce in general. We have not yet had a debate on the Estimate for the Department and it might be no harm, to put certain matters before the House.

The action of the Government not only in relation to this Bill—a somewhat similar measure was considered by the previous Government but not introduced—but also in relation to offshore oil exploration and mining constitute some very necessary nibbles at an existing attitude to economics and commerce. This country is the most liberal of any country in Western Europe, and the most liberal of any country of its level of development. There has been complete freedom for private enterprise in many areas. There has been freedom in the industrial arena with incentives at a level non-existent in any country in Europe, with complete relief of taxation on export sales, with substantial cash grants, with State marketing assistance and, for foreign companies, with a measure of control that exists in very, very few countries, totally in contrast to the position in more chauvinistic countries, such as Japan, where a foreign interest simply cannot set up companies without Japanese participation and Japanese control. Here foreign interests have complete freedom in financing, in their boards of directors, in regard to relief on profits, in regard to the repatriation of profits to their own countries, without paying income tax here, without any commitment whatever to the Irish Government in regard to what they should do with profits obtained or made in their companies.

It seems to me that, with the greater level of development which we have been experiencing, it has become necessary for the Government to look at the position. This is where misinterpretation comes into play because, when you nibble at anything, or when you make any change in the status quo, certain elements or certain vested interests are hurt and, inherent in that hurt, is a measure of conflict. Those opposed to the moves made by the Government have been attempting to label the Government as a Government discouraging initiative, discouraging enterprise and discouraging human endeavour. In my view, nothing could be further from the truth.

There is policy for greater involvement by the State in areas such as offshore activities or mining activities which is not affecting Irish interests in industry or commerce in any sense because, in effect, what is happening is that the participation of the State is participation which would not be there in default of involvement totally by multi-national companies. This is the reality. Irish interests regardless of how large they may be—the Minister's speech and the submissions of the CII referred to the tiny size of Irish industry; even the largest company here is infinitesimal in comparison with the size of manufacturing enterprises in the United States or Europe—are not being affected.

We have a twin policy. There is a policy under which private enterprise is encouraged to a substantial degree and not interfered with and there is the twin policy which sees that, with our lesser level of development and within the private enterprise arena, there is an insufficiency of funds to tackle the development of the country to the degree necessary in the national interest. For these reasons the State must play a certain role.

Coming back to the Bill then, by and large we have been served very well by industry and commerce and commercial organisations. In the area of mergers, take-overs and monopolies we have not experienced what is called the hard face of capitalism experienced in the United States and in some European countries, probably because we did not have the power in the private arena to adopt the rough tactics and engage in asset stripping to the degree that occurred in some of these other countries.

There has been public disquiet in certain areas. In this age of rationalisation public opinion demands that justice should prevail. There is no objection to sensible rationalisation in any area of the services or industry where common sense will prevail. But there can be great disquiet if what is termed rationalisation is merely a euphemism for asset stripping for example, or some other undesirable practice where one can pinpoint the activity happening in this precise case as against what can be termed the national interest. It is very necessary, therefore, to have this Bill on the statute book so that it is there should the need arise for implementation.

In my view this Bill must, in no circumstances—and I hope the Press will play their role in emphasising the Minister's positive approach—be considered restrictive in any sense. We accept the necessity for rationalisation in the market place of 250 million people, because we are competing with giants. We accept the open market position and the law of supply and demand which is operating. We accept also the necessity to stimulate growth in Irish industry. All these points have been made by the CII. They are not, in my view, in any sense in conflict with this Bill. The CII report attempted to paint the Bill as a restrictive attitude by the Government. I am certain the Minister in his summing up speech will refer to this.

I do not have many reservations about the ultimate appeal resting with the Minister. It is vitally necessary to have speedy decision-making in this area. On the question of decision-making in regard to rationalisation, merging of companies or monopolies, time is of the essence. I am appalled by any suggestion that decision-making should end up in the courts. We may complain about our politicians and civil servants, but if we are to end up in the courts for decisions in the commercial area we will be simply throwing our hands up. This would be very undesirable because of the slowness with which the processes of law move.

I am inclined to be very critical of the length of time which the Minister allows for an ultimate decision—nine months. That is undesirable and unnecessary. We live in a small country where the line of communication from the companies to the Minister's desk is a very simple process. We are yielding too much to bureaucracy when we suggest nine months.

I read somewhere that in Germany it takes one month. That seems to be a very short period if there are problems in a particular case. Other countries take from one month to a few months. Therefore, nine months is unacceptable because in that time the idea may have gone cold. There may be a merger between an Irish company and an outside company. It may be in the interest of the company and the national interest to go ahead with the merger but in nine months' time the foreign company may have amalgamated with a British company. For this reason I find nine months objectionable

I am not certain of the dictionary definition of "monopoly". For the purposes of the Bill "monopoly" is defined as a company which, in a particular area of activity, commands not less than half of the business of the country. I question this because total monopoly in my view is similar to the ESB and the Posts and Telegraphs situation. For the purposes of this Bill one might define a monopoly as being less than 100 per cent control. But suggesting that the definition must be at the level of 51 per cent might be undesirable. In many areas of activity the excellence of a company's product, the efficiency of its management, its keen cost of production and its better marketing, lead it to command a reasonably good share of the market—more than 50 per cent. If for the purposes of this Bill we define "monopoly" as 51 per cent, that may be an inhibiting factor to companies. This definition will need to be looked at more closely. I accept that the level of 100 per cent is possibly going too far. A decision between the 51 per cent and 100 per cent levels might be rational and a wiser approach than that suggested in the Bill.

I am glad I had the opportunity at the outset to make a few remarks on the necessity of putting Government policy in Industry and Commerce into perspective. Estimates have not been spoken about in detail in this area. To get a few matters straight it is desirable that there should be a discussion some time in depth on Industry and Commerce. I want to put on record that I do not see any measures taken by this Government in the area of Industry and Commerce as being restrictive to reasonable and fair private enterprise. It was suggested that in a few months action would be taken by the Minister in the mining area. He gave a commitment that there was no question of changing policy in this area. The commitments which companies have for export sales will be continued. In his summing up the Minister might expand his thoughts to incorporate some of the matters about which I have spoken.

Mr. Callanan

I intend to be very brief because much of what I intended saying has already been said by Deputy Brennan, Deputy Lalor and Deputy de Valera. Deputy de Valera said what I intended saying better than I could.

I congratulate the Minister on his brief. This Bill is one of the most important that has come before this House. Many people think that if we had everything rationalised and so on we would be happy for ever after; we would have better labour conditions, cheaper products and so on but that does not always happen. You cannot do away with competition in trade, any trade, because human nature, the human element always enters into it. I have been dealing with mergers in co-operatives and one's best intentions do not always emerge. We were told to rationalise the whole co-operative movement. It is very much needed in certain cases but in others it is not, for the simple reason that if one gives control to any large company, co-operative or otherwise, one takes away control from the ordinary individual. When speaking of mergers I am thinking more of co-operatives than of private companies because I know more about them. The same principle would apply in both cases because the smaller the outfit the nearer you are to the ordinary shareholder and worker. But when one's company becomes very large, as Deputy de Valera said, it is the balance sheet and the pounds and pence which count, not the social implications, not the workers, not the shareholders or the consumers. This is the danger I foresee.

I wonder what is being done at EEC level in connection with the control of mergers. I should like the Minister to take up that point when replying. I am not in a position to say; I do not know. There is not much use in taking steps here, when we are in EEC, where they are dealing with large take-overs, large companies and giant enterprises, as Deputy de Valera said. We have to have our outfits ready and geared to meet that type of competition. Perhaps it would be well if the whole common structure were to take a look at this. The danger I foresee about all this is the taking away of authority from democratic institutions. If all these big take-overs and mergers occur all over the world, and in Europe, they are going to run world parliaments and European Parliaments because they will have the money. At least, that is my view. Many people may ask: can one run a small private business in competition with one of those? I say there is one essential which is sticking out a mile. The man who can supervise personally, meet the people, look after his staff; and be constantly in touch with his staff has a good chance of doing so. I have seen proof of this in a few firms in the west where private individuals, in a small way, could compete even against a very large co-operative because of personal supervision and, as a result of that, efficiency.

This whole subject of mergers and take-overs reminds me of a saying of, I think, Lincoln: "Oh, liberty, what crimes have been committed in thy name!" I sometimes look around me and say: "Oh, efficiency, what crimes have been committed in thy name!" I think there is the danger that this may happen unless we safeguard against it—that we could be placed at the mercy of those large companies. We have seen examples of it happen already. I think it was Deputy Brennan who mentioned why there was a monopoly in the ESB, Bord na Móna and so on. I do not know if there was ever competition involved there. I am all for competition; it is the life of trade all over the world. I think there is room for private enterprise. State-controlled companies and nationalisation, where it is essential. But the most important thing is to ensure that the Parliament of the country, and the Parliament of Europe, be the supreme people. But one cannot run any country unless one has control over its finances. And if one hands over that control to large companies, as a result of take-overs or mergers, one becomes merely a talking machine.

I want to compliment the Minister for having said he is going to make the decision. I argued—on Local Government here—against the wisdom of handing over the decisions on planning appeals to a few individuals. Deputy Lalor, I think, referred to it here this evening. I hate decisions being made by faceless people who are not subject to anybody. If the Minister or the Government, make a decision which is found to be wrong, at least the people have an opportunity of saying: "Get out for having made that wrong decision." Again, such delegation of responsibility or authority to large companies takes from the authority of this House. I have not been long in this House and I feel a good deal of our authority has gone already. Directives come now from the European Parliament, which is a talking machine only. Directives are sent which we cannot even discuss here and, if we do discuss them, we are merely wasting our time because they are sent back to us with an attitude of take them or leave them. I would advise the Minister to hold on to his powers in this respect because, if he does make a wrong decision, the people will accuse him, and they have some redress. He is the head of a Department, and while he or any other Minister occupies that position they should make decisions independently. But were I the Minister involved I would feel entitled to seek advice before making such a decision and, having made it, that would be final.

I do not intend speaking for long on this Bill. Deputy de Valera said practically all I wanted to say in this respect. But I am very uneasy about the fact that democracy may well disappear completely if we hand over authority. In the case of co-operatives —again, I hope nobody will quote me as being against the rationalisation of the dairying industry or anything else because I think it is absolutely essential—one needs to be very careful about the use of that word "rationalisation"—the bigger the company the more remote are the ordinary people, shareholders or workers. Remote control is the danger.

I notice that the Minister mentioned also, very justifiably, the case of a company who might come in here and receive a lot of State money to set up an industry in the west. Let us say they had also an industry nearer the city. Suddenly they decide to merge those two companies and close down the more uneconomic one. That is the type of situation against which one has to guard.

The Minister, to be fair to him said that most of the provisions included in the Bill had been prepared by his predecessor. This Bill is being discussed here objectively, with nobody trying to score any political advantage. I believe we shall have more to say on Committee Stage because I, for one, have only just seen the Bill. I have listened to the various speeches made here. As I have said already, Deputy de Valera said most of the things I should like to have said and, indeed, expressed them better. The contributions made by the other speakers whom I heard— Deputy Staunton and Deputy Esmonde—were excellent and most constructive. Certainly the Minister will be able to say, when replying, that this has been a debate of constructive criticism and that everybody is agreed on the principles of the Bill. There may be some criticism of smaller points contained in it. I want to emphasise the dangers to democracy that might occur through large amalgamations. We should safeguard against this as much as is possible. Also, we should never say there is not a place for the private individual. I have heard people say: "If we get control we will produce cheaper articles; we will be able to sell on cheaper terms." But the moment any one company gains control one can look out, because that company will charge just what it likes for its products. It is as simple as that. Competition is the life of trade.

I should like the Minister to consider seriously this whole question of amalgamations. I agree with Deputy Staunton that from a reading of the Bill it might appear to be a rather tough one, but it is fairly well clarified in the explanatory memorandum. I see nothing to fear in this Bill. The State is merely taking all the necessary precautions. Deputy de Valera mentioned that whoever has the majority in this House can push legislation through the Oireachtas and he also mentioned an appeal to the Government or to this House. If a Minister made a decision and if it were then appealed to this House as the supreme governing body, the Members might be asked to decide by way of a free vote whether it was a right or wrong decision. I am not saying that this will ever happen but it might improve democracy. Dictatorship is not an alternative. I would be frightened of a situation arising where large companies might come together but where this House would not have control over them.

I have some experience with regard to amalgamation in the co-operative movement. I know the implications and the dangers. I am a member of co-operatives that have amalgamated. If they had not done so they would have gone out of existence. However, I realise there are other amalgamations that should be examined closely. I hope the contributions on Committee Stage will be helpful. We must ensure that the best Bill possible is passed, and that will entail discussion item by item on Committee Stage.

Deputy de Valera pointed out that this was an extremely important measure. When one is dealing with big companies what is involved is the money of the country. There is an old saying in my part of the country that is true today. It is "Money talks all kinds of language, whether we like it or not". Big money is involved in this case and the State should have a say in ensuring that the interests of the workers, the ordinary shareholders and the consumers are guarded.

There are many excellent people of all professions in the House and they should be able to contribute towards making this a good Bill. Thus, a detailed discussion on Committee Stage will be necessary. I should not like to be at the mercy of a large company that had a monopoly with regard to any commodity. As Deputy Brennan pointed out, in the past we had no option but to create some of the giant companies. However, they can create a problem for a Minister and for a Government. I regret I did not hear all of Deputy Esmonde's speech. He is a lawyer and I am sure he and others would be expert in ironing out the legal matters that may arise. We can talk only about the general principles.

Deputy de Valera raised an important point regarding price control and how it can be applied in a big company. If a company becomes more powerful than the Government it is the company who will exercise control, financial and otherwise. The Deputy instanced something that happened in the past, but it could arise again if large companies were allowed to dictate matters to a Government. The Minister must be very careful about these matters. If he has to make a decision regarding any matter he should consult those who may be in a position to help him and I have made this point repeatedly to the Minister for Agriculture and Fisheries. Any Minister should get all the advice he can, and study it carefully, but when it comes to a final decision the matter is over to him. The man who is not prepared to make a decision and accept responsibility should not accept a ministerial post.

Minister for Industry and Commerce (Mr. Keating)

I wonder if it is in order—although perhaps it is not normal—for me to say that I very much enjoyed the debate even though I had not expected to do so. I also enjoyed the fact that, when positions were taken, Deputies on both sides of the House answered each other. Different points were made from different directions. I am honoured that we have had some excellent contributions and a recognition of the importance of this Bill.

The words I used in the closing paragraph of my speech were not accidental. It was not simply a piece of politeness. I said:

I look forward to receiving the suggestions of Deputies as to its improvement in detail. I hope that the principles which inspire it will receive approval on all sides of this House.

That is a fair description of what has happened. There is a good deal of consensus about the general principles although there are some criticisms of detail. I could conceive of Bills where I would defend every semi-colon, but I said I wanted to hear the contributions of Deputies on this Bill. I do not believe a Bill can come from a Department, whatever the expertise at the back of it, that cannot be made better by the collective wisdom of this Department.

We have had some very good examples of this here and when we reach Committee Stage, let us take the items as they come and argue them so that in our collective wisdom we may make the measure as good as possible. As I shall be indicating as I go along, many of the criticisms are not sustainable, but perhaps some of them are sustainable.

The point was made by Deputy Staunton and others that we have not had a debate on the Estimate for my Department in the period that I have been in office. That means that some of the broad outlines of the attitude of this Government to industrial development, although expressed in many speeches and in many peripheral ways, have not been the subject of a significant and major Dáil debate. I am not proposing to have such a debate now but since the question was raised of the general attitude and of the outlook which inspired this Bill and since many people have spoken to me very usefully of the broader aspects and not of the Bill in its detail, I should like to say a few words about the broad approach.

First, I affirm passionate commitment to the growth, health and strength of an Irish private sector of industry. The words "private sector" hardly need emphasising but I would lay stress on the word "Irish". We have had great industrial success and development. I have paid tribute to the policy and the work of the IDA and I continue to sustain their work as vigorously as I can. Nevertheless, we are in world circumstances. Interestingly, there was very little debate on the emerging circumstances of the EEC. Yet this Bill is relevant to the EEC. The great concern is to defend the possibility not merely of survival, but of growth of Irish private industry. We do not wish to end with the circumstances where every interesting industrial property in this country is in the control of the sort of distant inhuman boardroom that Deputy de Valera described so well. There is a profound commitment to the health of the private sector but, equally, there is a commitment to ensure that a very significant bit of that private sector is in the control of boards sitting in Ireland, manned by Irish people.

Let us for a moment tease out the EEC situation, because very shortly we will have the implementation of a principle that we accepted when we signed the Treaty of Accession. I refer to the provision for free movement of goods, free movement of capital and free movement of labour throughout the Community and the right of establishment for any firm anywhere in the Community. In the list of the 500 largest firms of Europe, we do not figure. Finland, which is a small country like ours, has a few on that list. However the structure of our industry, although very small, is very hopeful and has great potential in many ways.

In speaking of Irish firms I have no wish to mention names but we have had people referring to instances in their experience but not wishing, even behind parliamentary immunity, to pillory particular firms. During my brief period as Minister I have known of instances in which there was a conflict in a contracting world economic situation between a parent company not in Ireland and a subsidiary in Ireland. We have had instances of firms being shut down in Ireland, not because they were insolvent, but because of a desire to supply that bit of the Irish market from a parent company in another place. That is a real danger. It is not a danger that will become less, because in the circumstances of the Community what is to prevent, for instance, one, two, three and four country newspapers being picked off one after another by people outside the country who perceive the revenue, the advertising and the other advantages and who expect that they might rationalise some printing work also? I can say this freely because most of the country newspapers are not of my political outlook, not of my political party connection. Deputy Brennan referred to the danger of Ministers making partisan political judgments but we can take an instance such as that of the provincial newspapers which might be conceived to be against my party political interests but, nevertheless, which involves a principle that I would sustain passionately. It would not be good to have that sort of takeover. Provincial newspapers, while not enormous in terms of volume of business, are very important businesses and one would not wish to see a concentration of them into a grouping of economic power or into a grouping of a political point of view. Their political points of view are known to their readers and are plugged into local circumstances.

Where we are in the Community in an ongoing situation and where the right to establish exists, we cannot have all of the plums of Irish industry picked off by somebody who simply waves a cheque book. We cannot have the circumstance where somebody picks off an Irish firm simply to get a market share and then closes down the Irish branch so that the Irish market might be supplied from other factories. There is concensus in the House that we cannot sustain any such happenings.

I was interested by the analysis of Deputy de Valera, although he did not use the word that I shall use in regard to the multi-national companies. I refer to the dehumanisation aspect of these supernationals and even the separation from the people in those companies who are concerned with production. Decisions are made at a great distance and often in financial terms—dehumanised decisions which can have crushing effects on people so far away from the boardroom that the people in the boardroom do not know that the crushed individuals exist and have probably never been to the country where their decisions have such horrible effects.

Therefore there is the aspect of retaining the human dimension in a world where there is increasing concentration. There is the aspect also of affirming that if it is a conflict between great companies which are not democratic, which are distant and which are depersonalised, and the question of affirming the primacy of national parliaments, it is important to assert that primacy and to defend democracy. There is a great concensus in the House on principles of that nature.

We are a country opening ourselves to all sorts of free trade, including the right to establish. We are the most peripheral, the poorest in economic terms and in some ways the most disadvantaged in on-going EEC circumstances but we have chosen to expose ourselves to the risks of free movement of goods, capital and labour and to give the right to establish to any firm within the Community. But to do that without some sort of protection would be irresponsible from a national viewpoint.

In reply to some remarks made by Deputy de Valera I would say a little on those general principles. Let me add one more general principle because, although I am taking Deputy de Valera's remarks out of order, he made some points that were very important. We may not have the same answers but I thought he was picking out the real questions. The Deputy was asking about a dilemma. He described it as a conflict between rationalisation, business efficiency and economic survival on the one hand and social aim on the other.

That is a real conflict. It is the central conflict of the whole of economic life but it is in my view a mistake to think there is any simple answer to it. The whole of the mixed economy in which we exist is in fact trying to balance those two things, trying to balance the point of view of the person whose firm gets on best because he can maximise profits against the fact that the firm exists in a social milieu where people exist as human beings, where they have rights and where their outlook has to be taken into consideration.

There is no simple answer to it. The whole of life is a trade off of economic life between those interests, the rationalisation, the efficiency interest and the social aim of economic activity. In the end in a mixed economy you very often finish up by compromise. You balance one against the other.

I want to comment on something Deputy Callanan said and with which I agree. If you look at the efficiency of the use of their assets by a huge company it is nonsense to say that bigger means more efficient. It is not borne out by the facts. When you get very big you have such an immense financial clout in regard to raw materials, in regard to market penetration, that you can use a special sort of leverage that a middle-size firm does not have. In terms of human efficiency, return on capital, power to innovate, vigour and initiative the small and the middle sized firms beat the big ones time and time again. There is endless documentation to prove that so it is a wicked nonsense, in a country like this, to suggest that bigger necessarily means better.

I want now to turn to the specific points that were made—not all of them because we will have a detailed Committee Stage on this Bill—by different Deputies. One of the basic criticisms was raised first by Deputy Brennan and afterwards by others but I will not make reference back to it for each time it was raised. Deputy Brennan asked if the Minister would have too much power and were there proper democratic checks and balances on the exercising of that power. I want to say to Deputy Brennan that the first part of the question was referred to by two of his party colleagues who commended me for taking the decision. In the end, as Harry Truman said, "The buck stops here", and the decision has to be taken by a Minister with the powers of sanction which the public and the Government have and indeed, in a way to which I will refer in a moment, the courts have over what a Minister does. It is better to have it that way than in some committee, some commission, some room somewhere, which is in fact less accessible to the democratic process than I am at Question Time here and in many other ways.

I believe that is a correct decision on conditions. What are the conditions? They are the processes to safeguard it along the way at each step. There is reference in the Bill to the power of the Oireachtas to annul a ministerial order. Deputy de Valera said that is all right but the realities of party politics are such that exercise of that power is often a bit unreal. He has a perfectly valid point. We did not do anything different from what has been done in many other Bills. This power of annulment within a fixed time limit, a certain number of sitting days of the Oireachtas, is very normal. I believe what some Deputies were forgetting when they made that reproach and also the CII—I will deal with their submission in a minute —when they made their reproaches about why we did not provide for recourse to the courts. The answer is by not trying to legislate away the right of recourse to the court that right is provided for. A Minister has to act within the structure of law like anybody else. In relation to the ministerial order in section 9 (2) the reason for it has to be given and that order is subject to challenge in the courts on all the usual grounds which is an in-built legal right that applies. As I said, Ministers do not function outside the law. If this Bill is one we work out well I can only function as a Minister for the moment inside that structure of law. There is no cutting off of legal challenge. The right to legal challenge exists.

Mr. Brennan

On constitutional matters.

Mr. Keating

No, wider than constitutional matters. There are more reasons than basic constitutional challenge to the law. Even if the law stands up constitutionally the Minister has got to function within that law. If his reasons, which have to be stated, for making an order are not found by a court to conform to that law then the order does not stand up. There is that appeal which goes beyond the right of constitutional appeal. If I thought it were not there I would want it to be there. If we find, on the advice of the Attorney General, that we need to put it in specifically we will certainly do it. It was not in originally because I took it for granted that unless we removed that right it existed. We will take advice on it. If we need to affirm it positively in the Bill we will certainly do so. There was never any intention nor are there steps in the Bill, to take it away. It is a basic right and it is correct that it should remain.

I do not think that it is valuable for me at this stage to treat individually many of the points that were made. It is not because I am indifferent to them or because I will not take notice of them but because many of them will come up piecemeal on Committee Stage. I think Deputy Brennan recognised that when he said some of the points he made were Committee Stage ones. I hope he will not think me indifferent to what he said if I do not reply to them now. The other points I noted from what he said are, in fact, what one might call third Stage points.

Deputy Lalor spoke about trading stamps but if I were to follow him I would be out of order because the control of them does not arise under the Bill. I want to reassure him, if I may be half out of order for a moment, by saying that I am contemplating legislation, as quickly as I can get it, on consumer protection when we will take the matter up. It does not come under this Bill.

Mr. Brennan

To eradicate the use of stamps?

Mr. Keating

Not to eradicate but to control them. I am not contemplating total eradication but control and restriction. The basic question came up of how long we take and whether the mechanism can function quickly enough. There is a misunderstanding about the total elapsed time, which is six months and not nine months. Think of the procedure. The information about a projected merger, take-over, monopoly——

Mr. Brennan

The Minister has three months which can be extended by six months.

Mr. Keating

I am sorry. I thought it was to six months. I am the one misunderstanding it. In that case, some of the points made by Deputies about elapsed time are right and we might look at it at a later stage to squeeze it up a bit. The point I was making relates to the fact that if one visualises the procedure it is that the required notice of a projected merger comes in and in the vast majority of cases the thing can be decided there and then and the answer can go out pretty well on the standard form; getting rid of it, I would hope, in days rather than weeks. It can be terminated at that stage. One might then well say: "If that one is a little bit dodgy we can take advice simply inside the Department from the officials and it may be settled in that way." It could then be terminated or it could go to the examiner, come back from him and be terminated, or it could go to the commission for examination and be terminated.

In making their case about time the Confederation of Irish Industry, on page nine of their submission, said that where the UK refer a case to the Monopolies Commission the normal statutory period is six months but it may be extended to nine months. In practice, they said, this has never happened. The procedures, attitudes, timetables and behaviour of officials in the two countries is sufficiently similar to indicate that if it has never happened in the UK, although the statutory time is the same as ours, it is unlikely to take that duration every time in this country. I think the total possible elapsed duration may be too long and we should consider that. In fact, the vast majority of answers would come back extremely quickly and the reason for this three-level approach—to the Minister, or to the Minister with advice from the examiner, or to the Minister with advice from the commission—is that you can short-circuit these full procedures at any time you feel ready so as to get a quicker answer. It is designed to expedite things. However, we shall look at total duration.

I have enjoyed very good relations with the CII and I hope to go on doing so. I profit from their advice and experience and I shall not thump them now, although a few Deputies from both sides have thumped them. I do not think they have really done themselves justice in this submission. While it is not for me to advise them on their business, and I do not want to get into an argument with them, it seems to me that they should speak for the whole section of Irish industry and not for one sector, not for the smallest, weakest, most scattered section and not for the sector which comprises the Irish subsidiaries of the great companies with bases overseas, but for all sectors. They can examine a measure like this as critically as they like but they must seek out and—if they examine it as it seems all sides of the House have examined it—they will find things that from the point of view of Irish industry, with the word "Irish" underlined, are extremely, positive, helpful, constructive and protective in it for Irish industry.

They have suggested that the floor of £½ million in assets of £1 million in turnover is too low, and when they spoke of the range of £20 million to £30 million they were suggesting that it was vastly too low. I gave instances earlier, for example, that of a country paper, and one could go on with many other instances, supermarkets and various small firms, of the type of business that might be concerned. In the context of this country, if you wanted to make the figure of £20 million or £30 million the criterion, you need not bother with the Bill because it would only concern very, very few. Figures appropriate to the EEC, to Germany, the third or fourth economic power in the world, or to the EEC as a whole with a quarter billion people—more than in the US —are irrelevant in our case. But it is as important to us to see that real competition prevails and that nobody obtains a dominant position, that nobody can knock off the interesting sectors of our economy with a cheque book and then, perhaps, run them down for the benefit of other suppliers, as it is to the Germans or to the Community. We function inside this small three-million-people economy and the threat of monopolies and mergers in their negative aspect— they also have the positive aspects that have been mentioned—is on the scale of our economy and these levels are appropriate.

I think Deputy Lalor accepted their appropriateness and I think he ended by saying they were neither too great nor too small, which made me think they were about right. I think they are about right. We can discuss them again in detail.

Mr. Brennan

Does the amount refer to each individual concern?

Mr. Keating

In the case of a merger?

Mr. Brennan

Yes.

Mr. Keating

It does. A Bill like this is inevitably a "Thou shall not" Bill; it stops things happening. That makes it appear hostile to the whole concept. It is being presented as a Bill opposed to economic development and growth, opposed to the defence of mergers and rational mergers and mergers producing greater efficiency.

Nothing could be further from the truth. In order to have power to prevent disadvantageous mergers one must take those powers but in the vast majority of cases one does not use them. One only does so where the criteria set out in the Schedule are violated in some way.

I have dealt with the point of duration. It is normally three months and that three-month period can only be extended by a statutory order in an individual case. One is not talking of a normal span of nine months; one will not spray out those individual orders and an individual order is required to extend the time. Where on reading the submission a merger is clearly desirable—and this would be in the vast majority of cases—the answer can be given through this mechanism literally within days. Even with normal internal delays we are talking of a couple of weeks rather than months. If it is felt that the overall maximum of nine months is too much—perhaps it is although it is the same as the British term—it can be further considered. In fact, CII themselves give some information about the total duration available in the different countries which is negative to their own argument, but it is a matter that can be looked into.

Deputy Esmonde raised a number of technical points. I suppose anybody who becomes a Minister and who has not first become a lawyer envies anybody with technical knowledge. Deputy Esmonde—this was across the floor, and this was one of the pleasing things about today's debate—used his technical knowledge and his vast practical experience in the use of that knowledge in business matters to bear on this. Because what he said was at such a level of detail that I could not comment on it without advice, I will simply say they seem to me real and interesting points but I will not comment on them now except perhaps on one point when Deputy Esmonde said it was not a matter of taking a controlling part of the shares—one company taking a controlling part of the shares of another company. He spoke of a loophole and about the Irish ingenuity to think up loopholes. It is vastly difficult to draft legislation that does not contain loopholes.

I do not deny that the point made by Deputy Esmonde looks like a loophole. We have looked at a number of other countries and at the draft directives of the EEC, inside which, of course, we operate, and it looks, although it exists as a mechanism in theory, that it is not a mechanism that is used in practice in other countries. It may be, as Deputy Esmonde said, that we have so many private companies—the structure of our company situation is peculiar to us and reflects our history—it will be necessary to look very carefully at the points he made. I will not prejudge the question as to whether we will bring in amendments ourselves, but certainly we will give the utmost consideration and courtesy to amendments from elsewhere. Neither will I prejudge the outcome of that situation.

There is something, sometimes, to be said for simplicity in legislation and for waiting a little to see whether a thing works or not. If this is obviously defective and if this loophole becomes a channel for major evasions, we would certainly set out to stop it. However, there are practical limitations when drafting legislation to thinking up every possible loophole and to holding them all off. It would become a legal game and each Bill would be a matter for the very edges of esoteric law which would not be of much relevance to ordinary citizens. For instance, it would not be within the competence of somebody like me to introduce or discuss such Bills because each one would be vastly complex.

Deputy de Valera is back in the House and I should like to say for his benefit that I devoted a little time earlier to his points. He appears on the record. In a sense, he presented a dilemma which is not invented; it is one which exists in life, between reconciling the interests of efficiency and rationalisation and the economic arguments between social and human arguments. Far from trying to resolve such dilemmas, I simply said it was the stuff of ordinary existence, of compromise, of balancing the two things against each other in our mixed economic situation. The main aim is to see that one does not destroy industry in the pursuit of social aims and also to see that the principles of efficiency as defined by economic criteria do not so dehumanise everybody in the process that ordinary social and human relations would break down. In the world we live in, there is no way out of that dilemma. We must go on compromising and reconciling. That is the only way to keep these conflicting interests in the balance.

Major de Valera

And to deal with each individual case.

Mr. Keating

Yes.

Mr. Brennan

Is that not the purpose of the Bill—to decide which merger will take place and which will not?

Mr. Keating

That is so. Nobody will pretend that you can draw a simple yardstick. If it were so simple we would not have this Bill before us. It will evolve in action. We have listened to what has been said and will listen to what will be said on Committee Stage. I was not simply being polite to Deputies when I closed my opening speech with that thought. We will try to make it as good an instrument as possible. If we use this practically, intelligently and honourably it need not be in any way a hindrance to the sort of healthy economic development that can guarantee the sort of competition and scale of enterprise that will be more efficient and more responsive to our social needs. I thank Deputies for what was to me an interesting and helpful debate and I look forward to the Committee Stage.

Mr. Brennan

In case this question is not probed during Committee Stage, when a person or a company or a party seeking a merger applies to the Minister, would it not be better to have the application in the first instance to the examiner? What means will the Minister use to ascertain whether the application should go to the examiner?

Mr. Keating

There is a genuine purpose in this. If it comes to the Minister and if he thinks the principle is correct, then the decision should be given by the Minister, subject to democratic control. Since he should be the decision maker, the quickest method is to offer him the opportunity to make a decision which he may take straight away, there and then. If he does not feel that he may take a permissive decision, he can invoke another mechanism, but the way the Bill provides for it is the quickest way.

Since you want speed and since you know that in 95 per cent or more of the cases there can be an instant "yes", then it is quicker and easier to go to the Minister and let him decide and have the reply come back quickly. If you go to the examiner it will take longer. The matter will come back to the Minister anyway, subject to the various sorts of control.

Mr. Brennan

It is the initial decision I am worried about. The Minister may be taking a decision when he does not know the facts.

Mr. Keating

It is one of two ways. If the decision is to say: "Yes, go ahead and merge" he can take that one without an immense amount of examination. It is the prohibition that needs a great deal of examination. He must have the two layers, the examiner and the commission, more deeply to scrutinise the decision to prohibit but the decision to say: "Go ahead and do it" is the normal thing. One is not looking at it as a fundamentally restrictive mechanism, it is only that you impose the restriction when you have to. To impose the restriction you need to have a whole series of advice but decisions to permit things to go ahead might be taken on the basis of the applications coming in. I would visualise civil servants coming up to their Minister and saying: "That is approved; that is approved and that is approved." The Minister would simply sign them and out they would go. That is the quickest way.

Question put and agreed to.

Committee Stage ordered for Tuesday, 26th November, 1974.

The Dáil adjourned at 10.5 p.m. until 10.30 a.m. on Friday, 15th November, 1974.