Competition (Amendment) Bill, 1994: Report Stage.

I move amendment No. 1:

In page 3, line 6, to delete "AND TAKE-OVERS" and substitute ", TAKE-OVERS AND MONOPOLIES".

Following Committee Stage the references to the Mergers Acts in the long title of the Bill were inadvertently changed to read "Mergers and Take-overs (Control) Acts whereas for the time being these Acts should still be known as the Mergers, Take-overs and Monopolies (Control) Acts. The title should change only after the Bill has been enacted and the amendment simply puts the word "monopolies" back into the long title of the Bill pending the acceptance of the later amendment dealing with that.

As this is a textual amendment I am in agreement with it.

Amendment agreed to.

Amendment No. 2 is in the name of the Minister. Amendments Nos. 3, 5 and 8 are related. Is it agreed to take amendments Nos. 2, 3, 5 and 8 together?

That is not agreed.

I do not agree with that. This is part of the reason I wanted the Bill recommitted. I am not happy to take these amendments together.

Acting Chairman

We will take the amendments separately.

I move amendment No. 2:

In page 3, between lines 12 and 13, to insert the following:

"`director' includes a person in accordance with whose directions or instructions the directors of the undertaking concerned are accustomed to act but does not include such a person if the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity;".

This amendment introduces the concept of shadow director and is provided to include a person whose influence is behind the running of a company. If it can be proved that the directions of a person are the directions on which the company's directors act, that person will be regarded as a director for the purposes of this Act.

Will the Minister explain the position with regard to a nominee director or a person acting in a professional capacity who has a beneficial interest in the matter in hand? We understand the definition of the word "shadow" in a political sense but will the Minister explain it in a commercial business sense? I am not satisfied with the term "shadow director"; it sounds somewhat shady.

I move that this matter be recommitted so that we can tease out the meaning of this amendment. This is a Report Stage amendment but it is important we know precisely what we are doing with it. It is not satisfactory that a speech should be made in favour of it, followed by speeches against and then a reply from the Minister.

That is the reason I called the earlier vote.

Acting Chairman

Is it agreed that the Bill be recommitted in respect of amendment No. 2?

The Minister said the Bill could be recommitted in respect of certain Report Stage amendments.

This is not an amendment for which we envisaged providing that facility. The amendment was put down in response to concerns expressed by Deputies on Committee Stage that people controlling an undertaking would not be affected by this legislation. To meet that concern we have included a person in accordance with whose directions or instructions the directors of the undertaking concerned are accustomed to act but not if the directors are accustomed so to act by reason only of advice given by the person in a professional capacity. A person acting in a professional capacity, therefore, would not be affected by this legislation. In particular instances the courts would have to determine whether the person involved was caught under this legislation.

Acting Chairman

Is the Minister opposing recommittal of the Bill in respect of this amendment?

I am opposing it. This amendment is a simple response to the discussion on Committee Stage.

Question put: "That the Bill be recommitted in respect of amendment No. 2".
The Dáil divided: Tá, 56; Níl, 69.

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, David.
  • Aylward, Liam.
  • Brennan, Matt.
  • Brennan, Séamus.
  • Browne, John (Wexford).
  • Burke, Raphael P.
  • Byrne, Hugh.
  • Callely, Ivor.
  • Coughlan, Mary.
  • Cullen, Martin.
  • Davern, Noel.
  • Dempsey, Noel.
  • de Valera, Síle.
  • Ellis, John.
  • Flood, Chris.
  • Foley, Denis.
  • Foxe, Tom.
  • Hughes, Séamus.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kenneally, Brendan.
  • Keogh, Helen.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, James.
  • McDowell, Michael.
  • Molloy, Robert.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Rourke, Mary.
  • Power, Seán.
  • Quill, Máirín.
  • Smith, Brendan.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Woods, Michael.

Níl

  • Ahearn, Theresa.
  • Allen, Bernard.
  • Barrett, Seán.
  • Barry, Peter.
  • Bell, Michael.
  • Bhamjee, Moosajee.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Broughan, Tommy.
  • Bruton, John.
  • Bruton, Richard.
  • Bruton, John.
  • Byrne, Eric.
  • Connaughton, Paul.
  • Connor, John.
  • Costello, Joe.
  • Coveney, Hugh.
  • Crawford, Seymour.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Doyle, Avril.
  • Dukes, Alan M.
  • Durkan, Bernard J.
  • Finucane, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Gallagher, Pat (Laoighis-Offaly).
  • Gilmore, Eamon.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Hogan, Philip.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenny, Enda.
  • Kenny, Seán.
  • Lowry, Michael.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McDowell, Derek.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Gay.
  • Nealon, Ted.
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Penrose, William.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, John.
  • Ryan, Seán.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Shortall, Róisín.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Timmins, Godfrey.
  • Walsh, Eamon.
Tellers: Tá, Deputies M. McDowell and Keogh; Níl, Deputies J. Higgins and B. Fitzgerald.
Question declared lost.

I moved the amendment which defines "director" as including a person in accordance with whose directions or instructions the directors of the undertaking concerned are accustomed to act but it does not include such a person if the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity. In other words, it does not include persons who are advising in a professional capacity but it includes directors because the word "director" includes directors which would include nominee directors.

What about a person acting in a professional capacity but who has a beneficial interest in the matter?

Is this Report or Committee Stage?

The Minister did not address it when he replied.

I understood I was asked to move the amendment and I have done so.

The way in which this Bill is being treated is farcical.

Since the Minister has insisted, for reasons best known to himself, not to permit any sensible discussion on these amendments but to require that everything be in the form of speeches, to which there is only one reply, we are now in a position where Deputy O'Rourke cannot ask a simple, straightforward and sensible question about an amendment she has been asked to consider.

I cannot get an answer.

That is the folly of not allowing new material put before this House at this stage in a criminal statute to be discussed and teased out as it comes up for consideration. I have no objection to the principle of making shadow directors come within the rubric of this Act in so far as it applies to directors but I have a far wider objection to this amending Bill in that its purpose is seriously flawed. We should not delude ourselves about what we are doing. Recently a seminar was organised at which all these matters were gone into in some detail and at which the consensus was, apart from those present at administrative level from the Department of Enterprise and Employment, that this was a foolish enterprise in that it was seeking to criminalise anti-competitive behaviour in circumstances where it would have the effect of making it more difficult to prove civil wrongs.

We are dealing with a proposal to decriminalise certain actions. If an action is both a crime as well as a civil wrong it will fall to be viewed by the courts in accordance with a strict construction of the Act. If ever a case is brought under this Bill — I do not believe it will because anybody who has ever addressed a jury could not contemplate bringing a case of this kind before a jury on this legislation in its present form — and is appealed to the Court of Criminal Appeal the standard of interpretation of this Act relative to the deeds or omissions, to which the prosecution relates, will be the same in the Court of Criminal Appeal as in the High Court. Therefore, the Act will have to be interpreted in exactly the same way. It follows that we are now introducing, effectively, a criminal standard of proof for anti-competitive injunctions and anti-competitive actions. The Minister has not addressed this folly, nor did the Department's representatives at the particular meeting. Every person who contributed to the debate saw the danger into which we were walking, which is that the Act will become effectively inoperable. Whereas I have no particular objection to changing the Act to permit shadow directors to be dealt with in the same way as directors, I have a strong objection to the consequences of that change which means that an inoperable Act will become even more complicated. I ask the Minister yet again to consider the folly of what he is doing.

On the issue raised by Deputy O'Rourke, clearly the definition as set out could refer to a person advising in a professional capacity, if the directors were accustomed to acting on their instructions, but clearly not otherwise. This definition has been used in the Companies Act, 1990.

On the wider issue raised by Deputy McDowell and a number of commentators, I have studied it carefully and I have got legal opinion on the issues raised. I am satisfied, having received legal opinion, that the approach we are taking is robust. There is no support for the proposition that where an individual set of events gives rise to civil and criminal liability, the civil claim falls to be determined on the same standard of proof as the criminal claim. To do so would belie belief if the Legislature has provided that it is possible to take a civil action for a certain set of behaviours and determines in certain instances that it may be a criminal offence. It would stand logic on its head to suggest that the courts would proceed to say that "beyond reasonable doubt" would have to be applied in the civil case rather than the "balance of probabilities". We have other instances where one can take a civil action in respect of assault and one does not have to establish proof beyond reasonable doubt.

Similarly, in respect of driving offences, people can be sued in respect of behaviour which might possibly also constitute criminal offences. There is no suggestion that those civil cases would have to be tried on the basis of proof beyond reasonable doubt. To proceed with a criminal case a higher standard of proof would be required. However, it does not follow that because a high standard of proof is required for a criminal case the same should apply in respect of actions under section 6. Given the concerns expressed in this regard, I sought sound legal opinion on the matter and I am satisfied that the approach being adopted is robust.

Amendment agreed to.

I move that the Bill be recommitted in respect of amendment No. 3. It is only sensible that we should discuss, rather than make speeches on, this significant proposal.

Acting Chairman

Is that agreed?

I cannot agree to this tactic. Members are seeking to recommit the Bill in respect of every amendment, technical or otherwise.

I want to know exactly what the term "connivance" means. I do not want to make a speech on the matter without having an opportunity to ask the Minister what he intends by use of that term in this context. I want him to explain the difference between "connivance" and "consent". If I connive at something, do I not automatically consent to it? If I connive at an outcome, do I not, by definition and in logic, also consent to it? How could one connive at something to which one did not consent? I want to tease out this matter. If this amendment extends the meaning of consent, I want to know the basis on which it does so. That should be done in a Committee Stage debate and not on the basis of three people making speeches which would not set out in a satisfactory way the nuances of these terms and the distinction, if any, between them.

I fail to understand why the Minister is behaving in what I suggest, as politely as possible, is a pig-headed way whereby we must agree to changes to our criminal law without discussing the precise implications of the terms he suggests. If necessary, I can make very long speeches. There is nothing to be lost in terms of time by recommitting the Bill in respect of these amendments, but there is everything to be gained in terms of common sense. If the Minister allows a sensible discussion on these proposals, time will be saved rather than lost. Otherwise, each time this issue arises time will be lost on a division.

I have spoken on this matter. I appeal to the Minister——

Acting Chairman

Unfortunately, the Deputy is not permitted to speak. The Member who proposes the recommittal is the only one who can speak.

I add my voice to that proposal and ask the Minister to see sense in this matter. He is behaving in a daft manner that is alien to his character and the way he does his business. A commercial mind with a lack of real understanding of criminal law drafted this Bill. The Minister is making fools of the four of us in the House today.

I cannot accept recommittal of the Bill in respect of every amendment. This is a technical amendment recommended by the draftsman to avoid technical repetition of the words "consent" and "connive".

Is the Minister afraid to discuss the matter?

I am not afraid to discuss the matter, but Members should note that this is Report Stage and not try to recommit the Bill in respect of all amendments. That does not make sense and is disruptive to proper debate.

We are not having a proper debate because we cannot debate the matter.

The Bill will be recommitted in respect of a number of amendments which deal with matters of substance.

It will be recommitted in respect of amendments which the Minister selects.

We are not having any say in the matter.

This is a technical amendment recommended by——

It is not a technical amendment.

Acting Chairman

The Minister, without interruption, please.

——the draftsman to tighten up definitions. It does not involve a substantive change to the legislation and, therefore, does not require a Committee Stage debate. The matter can be handled adequately under Report Stage procedures.

In respect of what amendments does the Minister propose to recommit the Bill?

Question put: "That the Bill be recommitted in respect of amendment No. 3".
The Dáil divided: Tá, 56; Níl, 69.

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, David.
  • Aylward, Liam.
  • Brennan, Matt.
  • Brennan, Séamus.
  • Browne, John (Wexford).
  • Burke, Raphael P.
  • Byrne, Hugh.
  • Callely, Ivor.
  • Coughlan, Mary.
  • Davern, Noel.
  • Dempsey, Noel.
  • de Valera, Síle.
  • Ellis, John.
  • Flood, Chris.
  • Foley, Denis.
  • Foxe, Tom.
  • Hughes, Séamus.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kenneally, Brendan.
  • Keogh, Helen.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, James.
  • McDowell, Michael.
  • Moffatt, Tom.
  • Molloy, Robert.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Rourke, Mary.
  • Power, Seán.
  • Quill, Máirín.
  • Ryan, Eoin.
  • Smith, Brendan.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Woods, Michael.

Níl

  • Ahearn, Theresa.
  • Allen, Bernard.
  • Barrett, Seán.
  • Barry, Peter.
  • Bell, Michael.
  • Bhamjee, Moosajee.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Broughan, Tommy.
  • Bruton, John.
  • Bruton, Richard.
  • Bruton, Joan.
  • Byrne, Eric.
  • Connaughton, Paul.
  • Connor, John.
  • Costello, Joe.
  • Coveney, Hugh.
  • Crawford, Seymour.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Doyle, Avril.
  • Dukes, Alan M.
  • Durkan, Bernard J.
  • Finucane, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Frances.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Gallagher, Pat (Laoighis-Offaly).
  • Gilmore, Eamon.
  • Higgins, Michael D.
  • Hogan, Philip.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenny, Enda.
  • Kenny, Seán.
  • Lowry, Michael.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McDowell, Derek.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Gay.
  • Nealon, Ted.
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Penrose, William.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, John.
  • Ryan, Seán.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Shortall, Róisín.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Timmins, Godfrey.
  • Walsh, Eamon.
Tellers: Tá, Deputies M. McDowell and Keogh; Níl, Deputies Durkan and B. Fitzgerald.
Question declared lost.

I move amendment No. 3:

In page 3, between lines 13 and 14, to insert the following:

"(2) In this Act references, however expressed, to an act that is done with the consent of a person shall be construed as including references to an act that is done with the connivance of a person.".

This technical amendment deals with the definition of the word "consent" which will be construed as including both consent, which would mean acquiesce or agree, and connive, which would involve intentional active or passive acquiescence. It is designed to accommodate those situations where people passively acquiesced to an action which had a damaging impact on others and provides for a definition of the word "connive" where the consent can be active or passive. In all cases the courts would have to be satisfied about the offence and the guilt of the person involved. Under the amendment the word "consent" can be construed as including passive acquiescence as well as active consent.

I was going to ask the Minister if "consent" equals "connivance" but it seems from what he said that it does. I am puzzled about the purpose of the amendment and the definition of the word "connive" which can be construed as including intentional active or passive acquiescence. The amendment states:

In this Act references, however expressed, to an act that is done with the consent of a person shall be construed as including references to an act that is done with the connivance of a person.

What is the purpose of the amendment and why was it tabled? As Deputy McDowell and I have stated, in spite of the best legal advice available the Bill is flawed, and the amendment is another example of this. At the seminar in April an eminent person said that a commercial mind without a real understanding of criminal law had drafted the Bill and that it was like a burglar alarm box with a note which read, "this is not attached".

The Bill is an extraordinary piece of legislation and I will continue to make that point on every amendment. I know the fine men and women working in the Department of Enterprise and Employment but the Bill is like a railway line where work on the drafting of it is undertaken at the first station and it is passed at the last station. However, there is no station where one can stop to consider whether the Bill is worth pursuing or needs to be redrafted.

A sign at one of the stations on this train journey read, "Minister to set up competition review body". Fianna Fáil and the other parties were pleased when the Minister made this announcement as we believe this body is very necessary. The person who was supposed to be in charge of the body was unable to take up the position but the Minister proposes to press ahead with its establishment. Will the Minister put a stay on the Bill until the competition review body has had an opportunity to put forward its views on proper competition legislation? Labour activists want the Bill because they believe they can slay dragons with it. However, the Bill will not kill a fly, let alone slay dragons, as no one can be prosecuted under it.

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?

There was certainly a lot of connivance in that.

One really has to ask what change we are making in our criminal law that, in addition to criminalising those who consent to something, henceforth we will criminalise those who fail to condemn because they secretly sympathise with something, or who fail, in some sense, to distance themselves from something when one might expect them to do so. Is that the kind of criminal law we want? If this is such small beer, I demand that the Minister give this House even one theoretical example. He can use any facts he likes to demonstrate a case where, apart from this amendment, somebody would not be deemed to consent to activity which amounts to a section 4 or section 5 breach, but with this amendment will be capable of being convicted. If the Minister can explain that to the House, well and good, but only when he has tendered such an explanation and we have had an opportunity to question him on its implications, will we be in a position to decide whether to support the proposal to amend the law along those lines. This underlines the error that lies at the bottom of the Minister's attitude to the Report Stage debate on this Bill.

As this is a complex area where the meanings of words are of the utmost importance and their application to specific facts will be of grave importance and may result in some people being sent to jail and others not being sent — the purpose of this amendment is to criminalise some people who would otherwise not be criminalised — I want to know precisely who is covered by the Minister's proposed extension of the term "consent". Every Deputy in the House is entitled to ask any Minister or any other Deputy who tables an amendment of this kind to our criminal law, to explain precisely what he means by it, what will be its effect and to explain, in exact circumstances, how it will apply to real situations in people's lives. That is why a Report Stage debate, which does not provide for explanations or allow Deputies the right to interrogate to establish the implications of what is proposed, is unsuitable for an extension of criminal liability. Without such interrogation and satisfactory answers, it is impossible for any Member to conscientiously form a view as to whether he or she should or should not support the Minister's amendment.

I do not want to drag out the debate on this amendment or to be accused of filibustering, but I challenge the Minister to tell the House of one instance where, apart from this amendment, somebody would not be criminally liable, but because of this amendment he or she would be criminally liable to be imprisoned for an anti-competitive act. I ask the Minister to cite one instance where this amendment will have any effect. If he cannot cite one, having regard to the ordinary and natural meaning of the words "connivance" and "connive", he should withdraw his amendment.

May I ask a question?

The Deputy may not as this is Report Stage.

That is unfortunate because this Bill is dramatically flawed, as is becoming increasingly evident.

It is unfortunate that the Minister did not accept the motion proposed by Deputy O'Rourke that the Bill should be recommitted to a committee of the House. We are dealing with the body corporate in the area of connivance. Will the Minister confirm if his amendment will cover a secretary and managing director as well as directors of a company? Will he state the purpose of the substitution of the word "connivance" on Committee Stage? We all know that problems arise in connection with business. I expect his amendment will be passed and the word "connivance" will be included.

In this section we are defining consent to include passive acquiescence. The purpose of the Bill is to deal with a situation where directors or managers or similar persons, who have control and responsibility for the running of a company, decide or a decision is made on their behalf on an approach that is in breach of competition law, damages others and is illegal. Members of Deputy McDowell's party argued strenuously that not only should there be consent, but a presumption of consent until the contrary is proven. In deference to that desired objective, we are sponsoring amendments to deal with that proposal.

We accept that.

The reason for the inclusion of passive acquiescence as well as active consent is to cover a situation where a director or manager claimed he or she stayed silent and passively acquiesced by allowing a decision to be taken that was illegal and damaging, on competition grounds, to other parties. The tone of the contributions of Deputy McDowell's party colleagues to the Committee Stage debate reflected that it would be undesirable that people could walk away from their responsibilities on the grounds that they did not actively agree to a decision. We are providing that passive acquiescence by a director or manager or a person responsible for controlling a company would be caught under the word "consent". Deputy McDowell, who talked about the conscious failure to condemn that could apply to almost anybody, has taken this issue to a ridiculous level, but that is not where consent is applied in the Bill. We are dealing with people who control companies and make or have decisions made on their behalf, for which they have responsibility. Failure to condemn in the case of someone who is extraneous to the company or who happened to be the paper keeper is not envisaged by this section.

I did not suggest that.

Except if he is a garda dealing with extradition papers?

The Deputy raised another issue concerning "the balance of probabilities" as against "beyond reasonable doubt". Where people take an action under section 6 for relief of damage, the decision will be taken by the judge on the basis of the balance of probabilities that the damage inflicted——

It must be lawful or unlawful, it is not a question of probabilities.

It must be proved that it was an anti-competitive agreement and that it damaged the party who brought the action and a judge will take a view in a civil action. If the Competition Authority decides to take a criminal action on more serious grounds or because of the failure of the party concerned to co-operate, it will have to establish a stiffer burden of proof that the party concerned was guilty, intentionally did something and by doing that his or her guilty could be established beyond reasonable doubt. That is far stronger——

The legality is the same in both cases.

The sections apply. The offences refer to sections 4 and 5. We debated that thoroughly on Committee Stage and arguments were advanced that there should be a different formulation, that we should not use established European law and the specific offences spelled out in sections 4 and 5. We took a different view from that of the Deputy's party in that regard. The burden of proof in taking a civil action for damages is different from the burden of proof in a criminal action that carries fines and the possibility of imprisonment. That is well established.

If the Director of Public Prosecutions takes a case on indictment, a jury will decide and the judge who guides members of the jury on the law will instruct them and they will bring in a verdict.

Someone must decide whether something is lawful or unlawful.

The judge will guide the jury on the law and they will have heard evidence from experts. One of the issues the Deputy's party was anxious to——

Are they free to disregard the judge's direction that something is lawful or unlawful.

They are free to bring in a verdict.

That is a new proposition.

The jury must assess——

Acting Chairman

I stress that we are on Report Stage and restrictions apply to the debate.

Essentially it is to cover a situation where people would claim they did not consent to but simply passively acquiesced in a decision that had a damaging impact on others and constituted potentially unlawful and criminal behaviour in some instances. That defence cannot be claimed, and where the word "consent" is used it will have the two meanings.

Amendment put and declared carried.

I move amendment No. 4:

In page 6, between lines 8 and 9, to insert the following:

"(1) the defendant did not know, nor, in all the circumstances of the case, could the defendant be reasonably expected to have known, that the act or acts concerned done by the defendant would constitute the abuse of the dominant position in trade for goods or services alleged in the proceedings, or".

There is already an established good defence in the Bill in respect of section 4 proceedings. This provides for a good defence where an offence is against section 5, namely an abuse of dominant position. The existance of good defence provide a constitutional safeguard where there might be doubt as to whether the alleged offence is in breach of either section 4 or section 5. It will also make difficult any challenge against the offence on the ground of vagueness — if it is vague one has the opportunity to prove that one did not know nor, in all the circumstances of the case, could one have reasonably been expected to have known.

Essentially this is the balancing side of the approach we have taken in respect of the criminalising of section 4 and section 5 offences. Section 4 and section 5 in certain instances outlines very specific offences such as price fixing, but it has a more general application also. The argument was made that, to deal with vagueness and potential complexity, it should be provided that there can be a good defence that the defendant did not know nor, in all the circumstances, could the defendant be reasonably expected to have known. It is not sufficient for him to claim he did not know and plead ignorance of the law. He would have to establish also that as a defendant he could not reasonably be expected to have known. Equally, he cannot simply brandish advice he might have obtained if that advice is not credible and could not have been the basis for his coming to a reasonable conclusion that this was not an offence.

In practice, the Competition Authority will pursue cases of breach of the competition law where, before it proceeds to take criminal action, it has been in very considerable and detailed interaction with the defendant. Prosecutions will arise out of the failure of people to co-operate with the attempts of the Competition Authority to deal with offences that have been pointed out to them. It is on that basis that the authority will finally decide to proceed against them. In practice the type of criminal offence that would be prosecuted under this Act would not be in the vague margins where the defendant would not know or could not have been expected to know. From the point of view of drafting the legislation it is important that we have this constitutional safeguard. That is the basis for sponsoring this amendment which is consistent with the similar treatment of offences under section 4 and breaches of licences issued under section 4.

I agree it makes sense to allow the same defence for a section 4 as for a section 5 offence. From that point of view I can see the Minister's motivation in sponsoring this amendment, but I am alarmed at the explanations I have heard from the Minister and his Department about this Bill. We now hear that in practice the prosecution element of this Bill will not in fact be brought into effect unless there has been considerable interaction between the Competition Authority and the company being prosecuted, during which the company has failed repeatedly to heed warnings given to it or to co-operate with the Competition Authority in the enforcement of the competition law.

That is nowhere written into this Bill, and it is not a plausible interpretation of the Bill. If, when this becomes law, the Competition Authority discovers that two Irish supermarket owners are rigging the price of milk, and has documentary evidence that will stand up in court, it will not decide not to prosecute because it did not have interaction with the supermarket owners for a while and did not tell them not to do this. If it finds out in retrospect that there has been a price-rigging cartel in milk or concrete products, it seems the law the Minister is bringing forward will allow it to prosecute with no question of a preliminary stage of dissuasion or correction before prosecution. If it is not in the law we should not assume that this Minister's interpretation of how a Competition Authority would work will apply in future. We are making the law, not enshrining the Minister's benign interpretation of this law. It either is or is not the law, and there is no way of getting around that.

That is a cumulative test. First, the defendant has to prove he did not know what he was doing was an abuse of a dominant position. Second, he has to prove that it was not reasonable to expect him to have known it in all the circumstances of the case. The Minister says it will not be a defence to show that one had legal advice along certain lines; the legal advice itself will have to be such as to be capable of standing up to scrutiny. For example, if the board of theIrish Independent debated the advisability, having regard to the competition law, of investing in The Irish Press and their lawyers counselled against it because it could be in breach of the Competition Act, but it goes ahead with it because it strongly feels it is not in breach of the Act, can it avail of this defence? What is a businessman to do if, as frequently happens in these matters, one lawyer says something is permissible under the Act and another lawyer says it is not? Can he act on the most favourable opinion or must he disregard opinions in these circumstances and rely on his own judgement or a judge's objective judgement as to the merit of the two opinions he has received?

It seems that this Bill does not address one issue, the European case law in relation to the defences for abuse of dominant position. Take one particular defence, the so-called rule of reason defence, which allows certain restrictive anti-competitive agreements to be put in place. For instance it allows a newspaper to appoint two agents but not every newsagent in a town to sell its product. One can argue that it is anti-competitive that every newsagent is not entitled to get a supply ofThe Irish Times or the Irish Independent and that a newsagent in a small town could have a monopoly.

Let us suppose there is a deal between the Retail Newsagents of Ireland and the National Newspapers of Ireland. Some people might say it is anti-competitive whereas others might say it was arguable and would take a chance. I do not believe the Bill addresses marginal cases. The Minister's bland verbal assurances that prosecutions will never be brought until there is a period of interaction, persuasion and non-compliance by those who are prosecuted is simply not worth the paper it is not written on. A verbal assurance is worth nothing. I query strongly the probity of putting into our law something that a Minister has to say will never really be enforced in practice.

Look at section 30 of the Offences Against the State Act, which is now used to solve regular crimes, such as an offence under the malicious damage Acts. People are detained for 48 hours for offences that have nothing to do with offences against the State. We cannot legislate on the basis that the Minister for Enterprise and Employment, Deputy Richard Bruton, thinks that the Bill when enacted will never be aggressively enforced and will only be enforced as a last resort by a Competition Authority for whom all other avenues have been closed off by the non-co-operation of the person to be prosecuted. I am against this. The Minister has acknowledged the folly of it and it has been signposted by my party.

In any criminal trial that I have ever been involved in, the judge says to the jury: "You are the masters of fact, I determine the law. You must take the law from me as I say it and if you disagree with it there is a court of criminal appeal to put me right." It appears the Minister is incapable of telling this House that in these cases it is the function of the judge to look at the evidence and say that does not amount to an unlawful practice under section 4 or an abuse of a dominant position under section 5 and the jury must take that as the legal interpretation. If the Minister's version of these trials is correct, it is a new aspect of Irish law that, notwithstanding a direction as to the law by a judge, the jury can say they do not agree, that they have heard an economist, a latter day McDowell or Bruton, and his evidence on the justification for this action and they will overrule the judge and will find that this was not an unlawful act or an abuse of a dominant position.

I can give examples of a simple cases we know about. It was stated in public at a seminar organised by the Minister or his precedessor that theIrish Independent investment in The Irish Press amounted to an anti-competitive agreement and-or an abuse of a dominant position. There was a heated denial by the newspaper in question that it did so amount but if a trial on indictment was launched — which I suppose is a bit unlikely — and Independent Newspapers were brought before a jury to determine whether their behaviour in relation to The Irish Press was an offence under this Act on some repeat occasion, it could be the case that a judge would say, “I have heard the evidence from the experts and I am saying that that investment was anti-competitive or amounted to an abuse of the dominant position and I am directing the ladies and gentlemen of the jury that this is unlawful. Your function is to decide the facts. Did Independent Newspapers know it was unlawful, did Independent Newspapers' three named directors who are in the dock before you connive at this or consent to this being done.” Is a jury in those circumstances able to say it does not agree with the judge and that it was a perfectly proper investment and did not amount to an abuse of a dominant position?

I want answers to that question because the ordinary people are entitled to know what is being put into our law. If, as the Minister has hinted in his contribution on the amendment, a jury is entitled to disregard the directions of a judge as to the legality or otherwise of any action in coming to a conclusion as to whether to convict under this Act, I want it spelled out by the Minister and I want the Attorney General's advice tendered to this House in the course of this debate that the Minister is correct in saying that it is a matter for the jury exclusively and that a judge cannot direct a jury as to whether an act does or does not contravene sections 4 and 5 of the 1991 Act.

Will the Minister define the word "reasonably" as used in this amendment? Is he satisfied that the use of the term "reasonably" will stand up in criminal cases? Obviously a much higher level of proof will be needed. Perhaps when the Minister is replying to this amendment he will enlighten us as to the legal opinion obtained by the Department in the drafting of the Bill, particularly the amendments before us.

The thrust of the criticisms of the Bill at the conference is that it is the work of economists' minds who had examined in detail the legal and criminal implications but had not applied the best advice from legal quarters. Will the Minister say whether, apart from the Attorney General, expert legal advice on competition law was retained by the Department during the formulation of these amendments and the Bill? It seems to me it was not.

First I will deal with Deputy O'Rourke's queries. I can assure her that we have had very detailed legal advice throughout the drafting of the legislation and it has been informed not just by in-house legal advice in the parliamentary draftsman's office or the Attorney General's office but also outside legal advice from practitioners in this area. I would have been very anxious to apply that rigour and I am very satisfied that rigour has been applied in the way the Bill has been approached. It is frustrating to see legislation taking so long to be enacted but that is because we felt the need to apply that sort of rigour to the Bill and to the criticisms that have come up in more recent times which we felt we needed to have assessed. In making the defence that we have applied in respect of section 4, the defendant would have to establish that he could not reasonably have been expected to know. The court will have to be satisfied that his argument that he could not have been expected to know is reasonable. This will put the onus on the defendant who chooses this defence to establish this. In the normal course of events he would be open to cross-examination on his claim that this defence applies to him.

Deputy Michael McDowell sought to imply that my description of what would happen in practice in the case of the Competition Authority pursuing an offence would be the only possible way in which this would be applied. I said clearly that was not the case. The reason we have this defence is that we are providing a law for all eventualities, not only the ones which would be more common. If people are advised that something is unlawful but they choose to rely on their greater judgement and opt for this defence, the onus is greater on them to establish how they reached the reasonable expectation that their judgment was superior to the professional judgment which has been offered to them. It will be difficult for them to convince the court that they acted reasonably in reaching a judgment that this was legal, notwithstanding that they received advice to the effect that it was not legal.

Deputy Michael McDowell envisaged the possibility the Bill might not be able to cope with serious offences such as market rigging or price fixing by the taking of a direct challenge under a criminal Act, I am not saying that this is not the case. The Competition Authority could on the basis of the discovery of market rigging or price fixing go down the criminal route but it could also go through the civil route by obtaining an injunction. It has a range of options and it would have to decide on the gravity of the matter before it decided which one to take.

Amendment agreed to.

I move amendment No. 5:

In page 7, between lines 18 and 19, to insert the following:

"(9) For the purpose of determining liability for an offence under this section, any act done by an officer or an employee of an undertaking for the purpose of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.".

The purpose of this amendment is to ensure that the liability for wrongdoing can be pinned on an undertakingvia a particular person acting on its behalf. The undertaking cannot disown an act done by its officer or employee and say it cannot be held responsible for it. Deputies were concerned that under the criminal code there should be a clear pinning of responsibility on the undertaking in respect of actions by an officer or an employee under its control. The amendment provides that an undertaking will be criminally bound by the acts of its officers or employees. An undertaking would have a good defence if it could establish that it did not know and could not reasonably have been expected to know that acts done by its officers or employees resulted in an abuse of a dominant position.

That is the implication of the previous amendment.

Exactly. If an employee took an action to become involved in price fixing, this would imply that the undertaking was responsible. However, in answering the charge that it was criminally liable, it could seek to use the defence that it did not know and could not reasonably have been expected to know about the behaviour of its employees but it would have to establish that this was the case. In this amendment we are responding to calls made on Committee Stage to tighten up this area.

I agree with this amendment. I remember the debate we had on this issue on Committee Stage. Deputy O'Malley and I cited examples. We sought to tighten this area so that there could not be a disregard by an undertaking of an offence which had been committed. We wanted to ensure that the pinning of an offence on a member or an employee of an undertaking would not result in the undertaking disowning the offence. The Minister said that the checks and balances of the previous amendments with regard to defence would apply. He wanted to take amendments Nos. 3, 4 and 5 together but there needed to be a greater teasing out of amendments Nos. 3 and 4. Amendment No. 5 is a clear attempt to take account of the concerns which were expressed on Committee Stage. I support its thrust, particularly as it is allied with the balances concerning good defence.

Amendment agreed to.

I move amendment No. 6:

In page 7, between lines 18 and 19, to insert the following:

"(10) References in this section to an order under section 14 of the Principal Act shall, where the context admits, be construed as including references to an order under subsection (2) of section 12 (as adapted by the Principal Act) of the Act of 1978."

At present, under section 5 it is an offence to breach an order made under section 14 of the Principal Act. Such an order is made when there has been an abuse of a dominant position. The company involved can act only in accordance with the order. The amendment provides that where a ministerial order has been challenged in the High Court and amended by it, it will also be an offence to breach the amended order. This is essentially a technical amendment.

Why is it necessary?

It is necessary because present drafting was not satisfactory in that there was ambiguity as to whether a breach of an order which had been amended by the High Court was an offence. The amendment removes this ambiguity to ensure that it shall be an offence to breach a section 14 order as amended under section 12 (2) of the 1978 Act. This was not specifically covered in the Bill.

Will a ministerial order be carried through to the amendment?

If the Minister established, as a result of a study by the Competition Authority, that there was abuse of a dominant position and he made an order requiring the divestiture of certain assets by the dominant player, this could be challenged in the High Court. If the court decided that the order was valid but subject to certain amendments, a breach of the order amended by the High Court would also be an offence under the Bill. This was not specifically covered in the Bill and there was a potential ambiguity.

Amendment agreed to.

I move amendment No. 7:

In page 7, between lines 18 and 19, to insert the following:

"3. —Section 14 of the Principal Act is hereby amended by the insertion of the following subsection after subsection (11):

‘(12) (a) The Authority may at any time in the exercise of their function under this Act make an interim order directing any person or enterprise to suspend any action or proposed action with the Authority believes may be——

(i) an abuse of the rules of competition as set out in section 4 of this Act,

or

(ii) abusing a dominant position in contracention of section 5 of this Act, and

(b) the Authority may provide that such an interim order shall be for a period not exceeding four months while the Authority conducts a study of any practice or action or any proposed practice or action against which the Authority issued an interim order under paragraph (a),

(c) the Authority may at any time vary the terms of an interim order issued in accordance with paragraph (a) or as a result of any decision by the Minister in accordance with paragraph (d),

(d) the Minister, having considered an interim order issued by the Authority, may if the common good so warrants by order direct the Authority to modify their interim order as the Minister may direct.'.".

A similar amendment was moved by the Minister of State at the Department of Enterprise and Employment when Deputy Ruairí Quinn was the Minister dealing with this Bill. This Bill has been debated for so long that it is like a never ending saga. We propose that the Authority should have the power to make an interim order for a limited period — the making of a permanent order would be a matter for the courts and the Oireachtas. An interim order might have proved useful in theIrish Indepen dent-The Irish Presscase. This reasonable proposal would allow the Authority to act quickly. I do not know how it could be declared unconstitutional.

Under paragraph (c) the Authority would be allowed to vary the terms of an interim order. That would be the better approach. Under the existing system it has to seek an injunction. This proposal would allow it to adopt a more pro-active approach — this addresses a particular criticism levelled at it — and deal with companies directly, rather than being passive and waiting for matters to come to its notice.

In carrying out research I was interested to learn that in other countries the Competition Authority is much more stimulative in its approach to matters such as this whereas the Authority here is inclined to regulate. In Poland, which is eager to become a member of the European Union and which we with other member states are keen to help through various trade programmes, the competition authority has six regional offices to disseminate information in a much more user friendly way. I would like the Authority here to stimulate rather than constantly regulate Irish business.

Rather than shoot down everything we suggest I hope the Minister will agree to the amendment which I freely admit was tabled by Deputy Rabbitte when he had a different status.

I agree with the Deputy that it would be nice if certain cases could be dealt with quickly. We are constrained, however, by the rules of the courts. It has been proposed that the Competition Authority should have the power to make an interim order, albeit for a temporary period, but it is not open to it to hear and judge cases.

It would then be set aside.

It is a matter for the courts to decide whether a decision is legal. The Authority has the power to take an action, not to judge cases. If a person applies for and is refused a licence to continue a section 4 practice, the Authority would have to go to the courts to have the practice declared unlawful if the person concerned persists with it. We have to appreciate that there is a line between the role of the Authority and that of the courts.

If the Minister suspects that a dominant position is being abused he may request the Authority under section 14 to investigate the matter. On receipt of its report he may make an order immedieately in the interests of the common good prohibiting the abuse or requiring adjustment on particular conditions. There is, therefore, under section 14 an effective and quick procedure.

In the case of section 4 practices, however, the final decision must rest with the courts. The approach we have taken is that these issues cannot be decided by the Authority acting as judge and jury. What the Deputy has proposed would overturn these principles.

I take the Minister's point. The point was made strongly by Mr. Lynch at the conference that without proper resources all bodies would continue to be spancelled and silenced; this is always a good defence for them. A criticism directed at the Competition Authority is that it presents an inscrutable face to the public and appears to act, unwittingly, in a mysterious way. It also seems to be obtuse to the ordinary person.

When one thinks of anti-competitive practices and the abuse of a dominant position one conjures up the image of big companies — the big boys — and many millions of pounds being at stake if it is proved they have engaged in such practices. The Authority should be more open about what it is able to do under existing legislation and the way it does its business. This is still a great mystery to many of those involved in business. Its aim is to prohibit anti-competitive practices, but there is nothing to stop it being stimulative in its approach to those who may have to use its procedures.

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.