Competition and Consumer Protection Bill 2014: Report Stage

Amendments Nos. 1 and 17 are related and may be discussed together by agreement.

I move amendment No. 1:

In page 8, after line 35, to insert the following:

“(3) The Minister shall make provision under this section whereby it shall not be a breach of this Act (or any statutory instrument relating to competition law), for the State to negotiate fees in relation to professional contracts for services from members of professional bodies, and a list of such services and bodies shall be set out by the Minister under this section.”.

Amendment No. 1 is in my name and amendment No. 17 is in the name of Deputy Tóibín. This amendment seeks to address an anomaly that currently exists in competition law prohibiting organisations representing professionals from negotiating with State agencies on terms and conditions. This was the subject of recent proceedings between the Irish Medical Organisation and the Government and it affects a diverse range of groups, including pharmacists, actors and others. When these professionals seek to come together as a group to negotiate terms and conditions on behalf of members, they are open to action by the Competition Authority. Such action has been taken against various organisations and this is not acceptable.

It is wrong that the State can dictate the terms and conditions of contracts such as the General Medical Service contract, the pharmacy contract and others. The State can avoid the negotiation of terms and conditions because of this lacuna. This amendment seeks to level the playing pitch in order that a proper working relationship can exist between the State and various professions that carry out services on behalf of the State. This is not a market situation and the State is using this legislation and its dominance as the only provider of GMS, pharmacy and other services to hide from its negotiation responsibilities.

The first part of my amendment deals with a relatively small group of people who raised concerns with the National Union of Journalists. They included freelance photographers, voice-over actors, freelance journalists and so on. For years such individuals could work with Irish Equity, SIPTU or the Institute of Advertising Practitioners in Ireland to generate a deal between themselves and their employing organisation.

The NUJ negotiated freelance rates at a national level and published fee guides but, strangely, action was taken by the Competition Authority to the detriment of the workers. Representative organisations should be able to deal with such individuals as they negotiate pay and conditions. They were seen, through a very narrow lens, as sole traders when in fact they operated together. It is logical that the Government should sort this out. The Government made a commitment in Towards 2016 to resolve this issue so it has already stated that it is on the same side as the workers, the NUJ and SIPTU. The amendment I have tabled will address this.

The second part of the amendment acknowledges this issue also affects representatives of small retailers. Proper competition happens when a fair power structure exists between seller and buyer. Often the perfect competition experience can be seen in small newsagents and retailers, yet oligopolies exist among suppliers. This applies to suppliers of newspapers, certain media, telephone cards, bill pay plans and so on. The relationship is very lopsided.

In countries such as Australia small businesses can come together and use a representative organisation to equalise the imbalance and provide advice to members rather than binding contracts. Members can choose to take what is on offer or not. I encourage the Minister to support these amendments.

These matters were discussed on Committee Stage. The law on this is clear as European Union, EU, competition law says self-employment is regarded as an undertaking. It is not legal to have decisions by bodies representing undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State. There is clear and established competition law on this that seeks to protect the public from collusion or collective price fixing by undertakings. Both Deputies seek to propose a group of undertakings to remove from this general provision but I cannot accept this.

Price fixing militates against effective competition law and we all recognise that Ireland has not been good at introducing competition into non-trading sectors. We have tended to allow arrangements that fall short of a proper, competitive operating market. In my view the Competition Authority has taken a very clear stance on this, and in both cases mentioned, the outcome of that stance has been agreement with the parties concerned. Irish Equity agreed with the Competition Authority not to breach competition law and to conduct its business in a way that stays within the provisions of competition law while offering support and representation services that are perfectly acceptable. The same goes for small retailers. Advice and technical support are acceptable but straying towards price fixing crosses a line. The Competition Authority is right to insist that a clear line is drawn.

It is worth recalling the court case in May between the IMO and the Competition Authority. The IMO sought to establish a right to negotiate fees for self-employed health professionals and the two parties agreed a settlement that has become a rule of court. The settlement recognised that the IMO cannot negotiate fees and that it is the job of the Minister for Health to determine fees, though consultation is allowed. Consultation went on in the case in question but the idea that a group of undertakings, be they retailers, professionals, lawyers or doctors, could fix prices is unacceptable. Some professional practices in Ireland charge very high fees and are supported by the notion that competition law should not stray into their territory. It is vital that we assert the importance of competition, particularly in non-trading sectors, as the challenge facing Ireland is to rebuild a strong trading economy. We cannot have uncompetitive practices in the non-trading sector while we try to open a more competitive environment for exporters.

It may be of some comfort to Deputy Tóibín that the formal classification under national law of a person as self-employed does not exclude the possibility that the person is a worker, within the meaning of Article 45 of the Treaty on the Functioning of the European Union. Accordingly, a person will not be considered to be an undertaking for the purposes of competition law where the nature of his or her work is such that he or she becomes incorporated into the undertakings for which he or she is engaged to provide services, thus forming an economic unit within those undertakings.

I believe the Competition Authority has taken an important position as we seek to develop competition law. There is a line marking what is acceptable for groups representing members, who are undertakings within the terms of the law. This can apply to professionals, small businesses and large businesses and it is important we respect the line.

Deputy Tóibín made reference to a programme, Towards 2016, that was formulated some time ago.

It was a Fianna Fáil proposal.

It was some time ago. The programme outlined a proposal to exempt certain categories. However, the troika then came and one of the challenges it undertook was that Ireland needed to be more vigilant about competition law and not add further exemptions to our competition law framework. Part of the agreement with the troika is to ensure no further exemptions to the competition law framework are granted unless they are entirely consistent with the goals of the EU-IMF programme and the needs of the economy. No such exemptions have been granted. I agree with this approach, which the Department and I continue to take. Our priority is to ensure a good competitive environment.

Deputy Calleary asked whether the State was abusing its dominant position. I do not accept this. The State is not a monopoly power seeking to exploit for competitive gain. The State represents the public interest and seeks to work out an agreement. The State enters into consultation and discussion, but ultimately it is the State which fixes the fees. This is the line which has been drawn by competition law, which I think is correct. There will be arguments to and fro, but the existing legislation draws the line in the correct place and we should stick with it.

The State enters into consultation and discussion with the power of this law behind it, and this restricts the ability of organisations to negotiate fully on the part of their members. I do not support, and am absolutely against, price fixing and collective price fixing, but the State is in a monopoly situation. For instance, only the State gives out a GMS contract. Earlier the Minister stated the Minister for Health can fix the rate. Only the State gives out a pharmacy contract. This also comes back to the Department of Health, which fixes the rate.

It happened during our time in government, and it was wrong then as it is now, that when organisations sought to flex their muscles and use their members in collective action, this law was used to prevent them from doing so. They do not have the same ability as workers to use the withdrawal of their labour as a threat because if organisations affected by this law withdraw labour, the Competition Authority will come down on top of them for acting collectively to try to influence prices. When something is not going the State's way, it has the ability to use the law as it is framed.

In recent months many Government backbenchers have gone to meetings throughout the country with groups such as the IMO and stated this type of thing should be done. We will give them a chance this morning to put power behind their words.

The Minister's refusal to reform this sector will have a negative effect on thousands of workers in small sectors. These include freelance journalists, writers and voice-over actors. It will reinforce the dominant position of the organisations for which these groups of people work and it will perpetuate an unfair and unbalanced competition relationship. Is it the case that under European law reform as set out by these amendments is illegal? Does the Minister state he has no room for manoeuvre under the law or can he, with the Government, make a change which will effectively improve the relationship of people with these organisations and their livelihoods?

To take Deputy Calleary's point, it is not that Ireland is taking a uniquely perverse view in deciding Ministers representing the public interest should discuss and consult with professional bodies but it is the Minister who should set fees. This is not Ireland taking an unusual view, it is European law. The approach being adopted and which I seek to uphold is what is provided in every country in the European Union. It is done to protect the public interest and users of public services, such as public patients, from collusion or price fixing on the part of bodies dealing with the State. This is a sensible position to adopt. The State is not an authoritarian monopolist that does what it likes. It is accountable to the House. It consults, discusses, examines options, assesses pressures on groups such as doctors, considers the costs of delivering a service and considers what is a reasonable approach to take, but at the end of the day it is the Minister who sets the price. It is not a question that a group of professionals or others collude to set a price and if they do not get a price, they withdraw their services. This is not the approach the law supports. It supports a process of consultation, but ultimately the Minister sets the price. This is correct and particularly so for Ireland. For many years the reports of the National Competitiveness Council have shown the costs of professions in Ireland soar above the averages.

Legal fees also.

This feature exists across the board. The Deputy raised the question of whether these powerful lobbyists exercise influence over people. I am sure they exercise influence and seek to take on powers or rights which are not permitted under competition law, but we must hold out in the public interest. Groups are entitled to express their views but we must make a decision on what is in the best interests of the public and I believe this is in the public interest. I am absolutely convinced this is the right line to draw.

There are various players in the economy. We know the strengths in the marketplace vary over time and small and large businesses must engage with them. We use competition law to try to provide a framework within which this can be as fair as possible. The principle of not allowing price fixing, collusion or abuses of dominant positions are enshrined in the law. The competition and consumer commission will have the tools at its disposal to seek to enforce these provisions. This is the right approach to take.

These are general provisions, and exemptions would have to be made for very clear public policy reasons. The Government, rightly in my view, entered into an agreement with the EU that we would not introduce new exemptions into our competition law because they were not consistent with the public policy we ought to be pursuing. A public policy defence should not and cannot be offered for such exemptions. The line I seek to protect is with regard to long-term interests. In the short term people will give out, but we should hold the line and state there are limits to what groups can do, such as they cannot engage in collusion or price fixing and players which are dominant in the market cannot abuse their dominance. Later in the Bill we seek to set out what are fair terms of exchange in the grocery goods sector, which we know about and which is part of this. This is an important principle and we should seek to hold the line on it.

Amendment put:
The Dáil divided: Tá, 30; Níl, 54.

  • Boyd Barrett, Richard.
  • Browne, John.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Cowen, Barry.
  • Crowe, Seán.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Grealish, Noel.
  • Halligan, John.
  • Healy, Seamus.
  • Healy-Rae, Michael.
  • Keaveney, Colm.
  • Mac Lochlainn, Pádraig.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McLellan, Sandra.
  • Mathews, Peter.
  • Moynihan, Michael.
  • Murphy, Catherine.
  • Naughten, Denis.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Tóibín, Peadar.

Níl

  • Breen, Pat.
  • Bruton, Richard.
  • Burton, Joan.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Coveney, Simon.
  • Daly, Jim.
  • Deering, Pat.
  • Donohoe, Paschal.
  • Dowds, Robert.
  • Durkan, Bernard J.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Hayes, Tom.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lyons, John.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Nash, Gerald.
  • Neville, Dan.
  • Nolan, Derek.
  • Ó Ríordáin, Aodhán.
  • O'Donovan, Patrick.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Ring, Michael.
  • Ryan, Brendan.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • Walsh, Brian.
Tellers: Tá, Deputies Seán Ó Fearghaíl and Michael Moynihan; Níl, Deputies Jerry Buttimer and Emmet Stagg.
Amendment declared lost.

If we could have order please, we will move on to the next amendment. Any conversations should be had by Members outside the Chamber.

I move amendment No. 2:

In page 9, between lines 23 and 24, to insert the following:

“(a) subsections (11B) and (11C) (inserted by section 2(h) of the Competition (Amendment) Act 2012) of section 8;”.

This amendment repeals subsections (11B) and (11C) of section 8 that were inserted into the Competition Act 2002 by section 2(h) of the Competition (Amendment) Act 2012. This provision had foreseen that where a person or undertaking was found guilty of a competition law offence, the court was obliged to order that person to pay all costs to the Competition Authority, including costs and expenses related to the investigation, detection and prosecution of the offence. No discretion was allowed. Since its introduction, there has been growing disquiet about the possible implications, including whether this could force courts to act in the opposite direction if a person was not found guilty and leave the State liable to a very large costs bill. It also could act as a strong disincentive to defendants to consider entering a guilty plea. Repeal will see full discretion returned to the courts.

Amendment agreed to.

Amendments Nos. 3 to 5, inclusive, 15, 19, 27, 78 and 79 are related and may be discussed together by agreement.

I move amendment No. 3:

In page 9, to delete line 26.

On Second Stage, Deputy Sean Fleming raised the issue of the simultaneous passage of this Bill and the Protected Disclosures Bill 2013. On Committee Stage, I promised to revert on Report Stage with amendments to bring both Bills into alignment. I therefore propose to achieve this by deletion of section 33 of the Bill, as amended in the select committee, and the reinstatement of the existing analogous section 87 of the Consumer Protection Act 2007 and section 50 of the Competition Act 2002, plus associated Schedules, which earlier had been earmarked for repeal but which are appropriately referenced in the Schedule to the Protected Disclosures Bill 2013, as well as the removal of the words "and in good faith" from both aforementioned sections. There also are consequential amendments to delete two references to section 33 of the Bill that are superfluous upon deletion of that section.

Amendment agreed to.

I move amendment No. 4:

In page 9, line 27, to delete “(d) Schedules 1 and 3.” and substitute the following:

“(d) Schedule 1.”.

Amendment agreed to.

I move amendment No. 5:

In page 9, to delete lines 28 to 31 and substitute the following:

“(2) Part 2 (other than sections 24A to 24E) of the Act of 2007 is repealed.”.

Amendment agreed to.

I move amendment No. 6:

In page 10, between lines 13 and 14, to insert the following:

“(2) Any resources used by the Commission shall be allocated by application of a set of priority principles in the public interest.”.

The purpose of this amendment is to ensure that in the operation of its duties and the carrying out of its tasks, the new competition and consumer protection commission will apply public interest principles, as well as those established by the Minister.

Under the Bill, the new competition and consumer protection commission will be independent in the carrying out of its functions and duties. In this context, it will be obliged to operate within the legislative framework set out in the Competition and Consumer Protection Acts and the obligations placed on it by European Union legislation. Resources will be made available to the new commission in the same manner as all other State bodies as part of the budgetary and Estimates process and within the employment control framework. At present, both the Competition Authority and the National Consumer Agency already operate according to published prioritisation principles. The Bill provides in section 30 that the new commission will issue a strategy statement every three years, which will be laid before each House of the Oireachtas and which will, inter alia, set out the key objectives, outputs and related strategies, including the use of resources of the commission. This will give visibility and transparency to the work of the commission when taken together with its annual reports. It also is worth noting that section 20 provides that I, as Minister, may issue directions in writing to the commission requiring it to comply with such policies of the Government as are specified in the direction. Moreover, such directions might be laid before each House of the Oireachtas. In light of the points made, I do not believe this amendment is necessary and thus, I am not in a position to accept it.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 15, line 21, after “inability,” to insert “not exceeding 12 months,”.

The purpose of this amendment is to ensure there is continuity in the operation of the commission if a member resigns.

Under the Bill, provision is made for the appointments being made to the new competition and consumer protection commission following an open recruitment competition to be run by the Public Appointments Service, PAS. This replicates the system that currently exists for the Competition Authority. The actual mechanics of advertising, interviewing and then taking into account the needs for successful applicants to give some months' notice to their current employers, possibly up to three months, means the entire recruitment and selection process could take a number of months to conclude, during which period the commission would not be allowed to function without the requisite membership if a number of vacancies had arisen. Thus, this Bill repeats at section 12(5) the provisions of the Competition (Amendment) Act 2010, which allow the Minister for Jobs, Enterprise and Innovation to appoint whole-time members for a short period to provide cover up to the point when whole-time members are appointed following the holding of a PAS competition.

In that context, as laid out in section 12(10) and (11), such members may only be appointed for an initial maximum period of six months, with a further period or periods allowed, provided the total period for the temporary member in question does not exceed 12 months. This provision was utilised in 2010 and appointments made for less than the 12 month period.

In section 12(3)(b), the Bill also repeats the provisions of the Competition Act 2002 on the appointment of temporary whole-time members to address a circumstance in which a member is temporarily unable to discharge his or her duties. Such provisions are intended to provide cover for a member or where he or she is unavailable to attend a meeting of the commission on the ground that he or she is out of the country and cannot take his or her place or play his or her part at a meeting, with a knock-on impact on the statutory quorum for the meeting. For this reason, such temporary appointments are for a very short duration and specific to unforeseen circumstances. They have, in the experience of the Competition Authority to date, consisted of members of staff being appointed for limited periods to ensure authority meetings could take place with the required quorum, often at short notice.

In summary, if a longer-term vacancy arises, the provisions under section 12(10) and (11) will operate and if a shorter-term vacancy arises, section 12(3)(b) will operate. In light of this, the proposed amendment is not necessary and I am not in a position to accept it.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 18, between lines 27 and 28, to insert the following:

“(9) Vacancies of the Commission membership will be filled within 3 months.”.

The amendment has been tabled because the Government has a poor record in filling vacant positions in non-commercial State-sponsored bodies. Shortly before Christmas last year, the Standards in Public Office Commission, SIPO, experienced a minor crisis when it found itself unable to carry out investigations owing to a failure by the Government to fill two vacancies on its six-member board. Acceptance of the amendment would ensure such circumstances would not recur and the relevant organisations would be able to function properly on the basis that they would have a full complement of members within three months of a vacancy or vacancies arising. This is a logical, simple amendment, which I am sure the Minister will support.

As I indicated in my reply to the previous amendment tabled by Deputy Calleary, under the system in place for dealing with vacancies, the Public Appointments Service operates a competition and delays do not arise in seeking to fill such positions. The positions in question are important as the relevant bodies have a legal obligation to meet quorums, which are important for the continuing operation of their work. This is set out in the legislation, which creates a framework within which maximum speed is applied to fill vacancies. It also makes provision to allow for temporary step-ups in the case of unforeseen events or where a competition takes longer to complete and notice must be given. The current system provides the flexibility the new commission will need to do its work. It should also be noted that the appointments in question are not made by Ministers. For these reason and the reasons I outlined in response to Deputy Calleary's amendment, I cannot accept the proposal.

Amendment put and declared lost.

Amendments Nos. 9 to 11, inclusive, are related and may be discussed together by agreement.

I move amendment No. 9:

In page 21, to delete lines 4 and 5 and substitute the following:

“(b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years or both,

(c) if the contravention concerned continues for one or more days after the date of its first occurrence, the person referred to in this subsection is guilty of a separate offence for each day that the contravention occurs; but in respect of the second or subsequent offence of which he or she is guilty by reason of that continued contravention, paragraph (b) shall have effect as if "€25,000” were substituted for “€250,000”.”.

It is a little bizarre that the Minister intends to introduce amendments Nos. 10 and 11, as they propose to make precisely the same changes as are proposed in this amendment. Rather than accepting an amendment from the Opposition, the Minister will table virtually identical amendments of his own.

The original proposals in respect of penalties to be imposed in cases of contravention of the legislation were weak. Given the resources available to the types of organisations that may breach the law and the nature of such organisations, a fine not exceeding €250,000 is a much more appropriate penalty. They should face a threat of having to pay a fine of this magnitude. There is no sense in beefing up the law in this area if one does not introduce penalties commensurate with the resources available to the organisations that will seek to abuse the legislation.

I welcome the decision of the Minister to propose amendments Nos. 10 and 11 as they reflect the purpose of amendment No. 9.

The only reason the phraseology chosen is not that set out by the Deputy is that the Office of the Parliamentary Counsel must stand over the exact text in the context of legal interpretation, established precedents in drafting and so forth. This does not in any dilute the fact that this change is being made on the initiative of Deputy Calleary. Having reflected on the Deputy's comments on Committee Stage, I am pleased to accept the principle of his amendment, albeit not the precise text. In using instead the text approved by the Office of the Parliamentary Counsel, I assure the Deputy that I fully recognise the provenance of the proposed change.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 21, line 4, to delete “€30,000” and substitute “€250,000”.

Amendment agreed to.

I move amendment No. 11:

In page 21, between lines 5 and 6, to insert the following:

“(6) Paragraph (b) of subsection (5) operates so that if the contravention concerned continues one or more days after the date of its first occurrence, the person referred to in that paragraph is guilty of a separate offence under that paragraph for each day that the contravention occurs; but in respect of the second or subsequent offence of which the person is guilty by reason of that continued contravention, paragraph (b) of subsection (5) shall have effect as if “€25,000” were substituted for “€250,000” and references to imprisonment were disregarded.”.

Amendment agreed to.

I move amendment No. 12:

In page 23, line 17, to delete “give a direction in writing to the Commission requiring it to comply with” and substitute “request the Commission to comply with”.

Section 20 states: "The Minister may, in relation to the performance by the Commission of its functions, give a direction in writing to the Commission requiring it to comply with such policies of the Government as are specified in the direction." Circumstances may arise in which a Minister, albeit not the incumbent, will use this provision to abuse the ministerial power afforded him or her through this provision. The purpose of amendments No. 12 to 14, inclusive, is to provide greater protection against such abuse of power by diluting the language used in the text. The amendments provide that any Minister issuing instructions to the commission will do so in accordance with public policy and, more important, the wishes of the Oireachtas.

Deputy Calleary proposed a similar amendment on Committee Stage. Having considered the proposed amendment since then, I am still of the opinion that this amendment appears to have the dual impact of removing the requirement that any direction made by the Minister under section 20 will be given in writing and changing the nature of any such direction from the current requirement to comply with a direction to one of requesting the commission to comply. Removal of the written element is the more problematic of the two elements of the proposal. As proposed, it would weaken the provision by allowing for verbal or oral directions which can or may be open to interpretation and legal uncertainty, both for the Minister and the commission. Having the direction in writing would allow for certainty for both parties and mean the transparency safeguard provided for under section 22, namely, that the Minister must lay a copy of the direction before each House of the Oireachtas, would be inoperable. This would not be a desirable position for any of the parties. In light of this, I am not in a position to accept the proposed amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 13:

In page 30, to delete line 41, and in page 31, to delete lines 1 to 3 and substitute the following:

“(6) The Minister may, from time to time, request the Commission to consider guidelines from him or her concerning the preparation of the Commission’s work programme and the commission may consider same.”.

The amendment is tabled in the same spirit as amendment No. 12, in other words, to ensure the power conferred on the Minister under section 20 is not abused.

Deputy Calleary's proposed amendment essentially changes the thrust of the provisions of the Bill, from the Minister having the power to issue directions or guidelines to the commission concerning the preparation of the work programme with which the Minister must comply to a provision which sees the Minister requesting the commission to consider any guidelines the Minister issues which the commission may consider.

The provision in the Bill is a fairly standard one and has analogous provisions in both the Competition Act 2002 and the Consumer Protection Act 2007. The proposed amendment from Deputy Calleary appears to weaken the powers of the Minister in respect of the preparation of the commission's work programme. Thus, I am not in a position to accept the proposal.

Of course, a Minister cannot override the areas where the commission has independent statutory powers. Ministers cannot issue directions or guidelines. This relates to their work programme, not to their independent powers and the exercise of them.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 14:

In page 32, between lines 3 and 4, to insert the following:

"(2) The Minister shall, within six months of a report being submitted to him or her by the Commission, outline to each House of the Oireachtas, the actions the Minister has taken following on from any recommendations made in such a report.".

Section 32 outlines the reporting requirements of the new commission. In particular, subsection (3) gives the proposed commission powers to advise the Minister on policy and any matter relating to those functions as he or she may request. The amendment provides that a Minister, within six months of receiving the annual report, would lay a report before the Houses of the Oireachtas outlining what he or she has done on the trends identified in the report.

As the Minister stated earlier, competition law is evolving quickly. If this organisation is to act with the full teeth that it is being given by the Bill, we need to monitor its performance. Also, if the commission makes recommendations on competition law, we need the Minister to act as appropriately and quickly as possible. This seeks to provide Houses of the Oireachtas oversight of the Minister in this issue.

The Bill provides, under section 32, that the new competition and consumer protection commission will submit an annual report to the Minister for Jobs, Enterprise and Innovation. The Minister will lay the report before both Houses of the Oireachtas. It is not normal for such annual reports to contain recommendations.

However, the Bill also provides, at section 10, as part of the new commission's functions, for the new commission to undertake studies or analysis, including at the request of the Minister at section 10(4). This is based on existing legislation under the Competition Act 2002 and the Consumer Protection Act 2007. In this context, the commission will be able to make recommendations to Ministers, etc.

On the Competition Act 2002, the Competition Authority may report - it has on many occasions reported - on how competition is working in different sectors, and it has made recommendations to improve how competition works in these sectors. Such recommendations are addressed by the relevant Minister, public body or representative body, as appropriate.

While the new commission may be expert in the area of competition and consumer protection, it does not have the wider public policy role that Departments of State have. Ministers and Departments must consider issues from more than one policy perspective and they must weigh competing and conflicting policies against each other. A single-focus, albeit expert, body does not typically bring such wider considerations into its deliberations.

Currently, in practice, the Government has agreed that the relevant Minister who is responsible for the area under a competition authority report has to report to Government within nine months with his or her reaction and the Government notes or takes a decision. It would be expected that the same would apply to the reports of the new commission.

Thus, I am not in a position to accept the proposed amendment.

Amendment, by leave, withdrawn.

I move amendment No. 15:

In page 32, to delete lines 16 to 40, to delete page 33, and in page 34, to delete lines 1 to 3.

Amendment agreed to.

I move amendment No. 16:

In page 43, between lines 1 and 2, to insert the following:

"(3) A reference in any Act of the Oireachtas passed before the establishment day or in any instrument made before that day under an Act of the Oireachtas to the chief executive of the National Consumer Agency shall, on and after that day, be construed as a reference to the chairperson of the Commission.".

This amendment inserts a new provision in section 40 - transfer of functions to commission - so that references to the chief executive of the National Consumer Agency in legislation which may not be picked up on by the current construction of that section are now included. The amendment provides that reference to the chief executive of the National Consumer Agency shall be construed as a reference to the chairperson of the competition and consumer protection commission.

Amendment agreed to.

I move amendment No. 17:

In page 46, between lines 28 and 29, to insert the following:

“Amendment of section 4 of Act of 2002

49. Section 4 of the Act of 2002 is amended by inserting the following subsections after subsection (9):

“(10) Actors, voice-over actors, freelance journalists, freelance photo journalists and session musicians are not subject to the provisions contained within this section.

(11) Representatives of retailers may engage in commercial discussions with large suppliers for the purposes of advice only.”.”.

Is the Deputy pressing the amendment?

Amendment put:
The Dáil divided: Tá, 34; Níl, 62.

  • Browne, John.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Coppinger, Ruth.
  • Cowen, Barry.
  • Crowe, Seán.
  • Doherty, Pearse.
  • Ferris, Martin.
  • Grealish, Noel.
  • Halligan, John.
  • Healy, Seamus.
  • Healy-Rae, Michael.
  • Higgins, Joe.
  • Keaveney, Colm.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McLellan, Sandra.
  • Martin, Micheál.
  • Mathews, Peter.
  • Moynihan, Michael.
  • Naughten, Denis.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O'Brien, Jonathan.
  • O'Dea, Willie.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Tóibín, Peadar.

Níl

  • Bannon, James.
  • Breen, Pat.
  • Bruton, Richard.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Carey, Joe.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Daly, Jim.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Donohoe, Paschal.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Flanagan, Terence.
  • Gilmore, Eamon.
  • Griffin, Brendan.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lynch, Ciarán.
  • Lyons, John.
  • McCarthy, Michael.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Neville, Dan.
  • Nolan, Derek.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Phelan, John Paul.
  • Ring, Michael.
  • Ryan, Brendan.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • Walsh, Brian.
  • White, Alex.
Tellers: Tá, Deputies Caoimhghín Ó Caoláin and Peadar Tóibín; Níl, Deputies Emmet Stagg and Joe Carey.
Amendment declared lost.
Debate adjourned.