Earlier in the debate the Minister made a facile defence of the Bill based on the proposition that it is possible to assault somebody and to be liable civilly for it and to be criminally prosecuted for it. In the former case there is proof on the balance of probabilities while in the latter case there is proof beyond reasonable doubt. If that is the standard of the advice given to the Minister then I am dismayed. The real issue is whether certain behaviour is prohibited by section 4 or 5 of the Competition Act. This is a matter of law; it is not a matter on which there can be two standards of proof. We cannot have a situation where a judge in one court says that certain behaviour is lawful while a judge in another court says it is not lawful because there is a higher standard of proof. In an assault case the standard of proof as to whether something took place may differ between civil and criminal proceedings but the nature of the act does not differ; it is an assault for a person to lay a hand on someone else's shoulder without their consent. That is a matter of law and it is no defence in a criminal proceeding to say that there is a different standard of proof. If the case is proven beyond reasonable doubt and it is established that a person physically interfered with somebody else then it is an assault.
Applying that reasoning to these circumstances, the Minister's advice is fundamentally flawed and deficient in that he does not seem to understand that, as things stand, certain actions are prohibited by the Competitions Act, 1990. If they are prohibited by that Act then it will be a criminal offence to engage in them in certain circumstances after the enactment of the Bill. The standard of proof between the two is not what is at issue. What is at issue is whether certain circumstances are to be judged as unlawful. The advice tendered to the Minister seems to have missed the point that henceforth the issue as to whether a particular agreement or practice is unlawful will have to be decided on the same legal basis for civil and criminal cases. As was stated at the conference in April, the courts will have to apply a uniform standard to these issues.
I come to the second point. It has never been clearly explained, and I challenge the Minister to do so now, whether in a trial for an offence under sections 4 or 5 of the Competition Act 1991 — that is an offence under section 2 of this Act which would be an offence under section 4 or 5 of the 1991 Act — a jury will decide whether an act was a breach of sections 4 or 5 of the 1991 Act. Alternatively, will a judge look at the facts that are proven and say to the jury that he is directing them as a matter of law that what has been proven by the prosecution in this case amounts to an anti-competitive agreement or whatever? I want the Minister to indicate whether the jury will be entitled to say they think it is not anti-competitive as they have listened to two experts stating it is justified by the rule of reason, or some other consideration.
In the case of a trial in the Circuit Court, will a judge, having listened to the arguments and the experts tell the jury as a matter of law that the agreement, concerted practice or whatever is prohibited by sections 4 or 5 of the Competition Act 1991? That is a crucial question the Minister has not clarified and if he cannot, he should not present a Bill of this type to the House. I should like to know whether in future juries will determine what is a contravention of sections 4 or 5 of the Competition Act, 1991, or whether on the contrary, a judge will decide that the Act was unlawful, when the jury will have to decide whether the accused was guilty of knowingly participating in the act or practice concerned.
A quick run through is one of the problems of this kind of debate, because we cannot ask the Minister any questions or elucidate anything he says. He just spews out one particular understanding of his of what the words "connivance" and "connive" mean and that is the end of the matter. We should know what we are legislating for before doing so. The word "connive" in the Oxford English Dictionary — taken from the Oireachtas Library — means:
to shut one's eyes to a thing one dislikes but is resigned to, to pretend ignorance of or to overlook; to regard an offender sympathetically; to turn a blind eye to an action which one ought to oppose but which one secretly sympathises with; to be secretly accessory to; to remain inactive or dormant or to be in secret complicity or to conspire with somebody.
That is what I think the word "connive" means. "Connivance" is the act of conniving or, as the dictionary definition states: "assistance in wrongdoing by conscious failure to prevent or condemn."
Are we now criminalising "conscious failure to prevent or condemn" other people's activities? Is that to be a new form of criminal activity — that when somebody engages in an activity which is argued to be a breach of sections 4 or 5 of the Competition Act, 1991, somebody else who fails to actively condemn that activity, or turns a blind eye to their behaviour, is deemed to consent to their behaviour and becomes criminally liable for their behaviour? That is the issue.
The Minister comes in here with a little speech devised for him by somebody else in which he throws out a pat definition of "connivance" which does not apper to comply with the Oxford English Dictionary definition. He proposes to make it part of our criminal law that a person who turns a blind eye to somebody else's behaviour, or somebody who consciously refrains from condemning something and secretly sympathises with it, for the purposes of this Bill if it becomes law, is deemed to have consented to that behaviour and, in so doing, becomes liable to be prosecuted on that account.
Is that not a very substantive change in the law? Since the Minister contends this is an adequate way to debate this issue, I challenge him to say in what other areas of the law turning a blind eye to somebody else's behaviour, secretly sympathising with it, or failing to condemn it will mean one lands in jail, especially in matters of this kind of complexity? Since the Minister is so sure that this is a drafting amendment, he should tell us now the circumstances in which somebody who, apart from this amendment would not be deemed to be consenting to an activity, will be deemed to have consented to it because he was conniving at it, because he was conspiratorially turning a blind eye to what is going on.
Is that any way to conduct, first, the activities of a Legislature; second, the activities of a Department or, third, our criminal law — that we will insert in an Act a provision which extends the concept of consent to apply to circumstances in which people consciously turn a blind eye to the behaviour of somebody else and thereby become criminally liable, with that person, even though there may be no gain for themselves in the activities of that person? Is it to be the case that a weak-minded member of a board of directors will be liable to be prosecuted because, even though he does not like what is going on, consciously decides to avert his gaze from it because he is in a commercial minority, under financial pressure or whatever? In future will that be deemed to be consent to an activity which will expose somebody to criminal liability so that they end up in jail if any of these prosecutions were ever to get going?
In refusing Deputies O'Rourke, Ned O'Keeffe, Keogh and myself the right to ask questions about the effect of this, the Minister says this is a drafting amendment recommended by the draftsman. Again I challenge the Minister to state clearly one example of somebody who, but for this amendment, would not be guilty of an offence because they would not be consenting to it but who, because this amendment is passed, and because they could then be described as conniving out the activity in question, would be liable to be convicted. If the Minister cannot do that he should not tender this amendment to this House in this fashion. It is very unfortunate that a Government Minister should come into this House with a Bill and say he will not be questioned on the effect of a proposed change in our criminal law.
Let us take a classic example where competition law is in the public domain — therefore I will not offend anybody — one dear to the Minister's heart, that of the Irish Press group and theIrish Independent's activities in investing in that group which curiously, according to the Minister, was an abuse of a dominant position and an unlawful investment by the latter. Let us apply the effect of this amendment to that set of circumstances. If somebody sitting on the board of directors of Independent Newspapers has misgivings about such a proposal and if the proposal goes ahead against his wishes, is he consenting to it? Is that person, who decides to suppress his misgivings about what they are doing, conniving at it? In those circumstances, is a criminal offence committed by any of the people who are doubtful about what is taking place but decide not to voice their doubts because other more powerful forces within a company decide to proceed with the Irish Press investment?