Amendments Nos. 1 and 3 are related and may be discussed together, by agreement.
Competition Bill, 2001: Committee Stage.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
Government amendment No. 1:
In page 8, lines 28 to 32, to delete subsection (8) and substitute the following:
"(8) The putting into effect of a merger or acquisition in accordance with the provisions ofPart 3 of this Act, together with any agreements which are ancillary to the merger or acquisition and are referred to in the notification of the merger or acquisition under subsection (1) or (3) of section 17, shall not, in itself, be prohibited under subsection (1).”.
The Competition and Mergers Review Group recommends that the mergers that have been assessed under the merger control regime and allowed to proceed should not generally be vulnerable to challenge under the competition rules. Accordingly, subsection (8) of section 4 and subsection (3) of section 5 provide that the mergers which are notified either mandatorily or voluntarily are immune from challenge under sections 4 and 5 of the Bill.
This immunity is limited to the merged entity as notified, including any auxiliary agreement similarly notified, but does not apply when the merged entity subsequently alters its behaviour out of line with the notification. However, the present text of the Bill does not deal with where an undertaking voluntarily notifies a merger but subsequently withdraws the notification and therefore the Competition Authority is not given an opportunity to assess the transaction. Clearly, it would be against the spirit of the recommendation from the CMRG for such an undertaking which has not submitted itself to merger control regime to benefit from the immunity. Accordingly, these amendments will ensure that only those voluntarily notified, which are properly assessed by the authority, can rely on the protection from suit.
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
There is a correction to amendment No. 2, which is a Government amendment. It should read:
In page 8, subsection (1), lines 40 and 41, to delete "in a substantial part of the State" and substitute "in any part of the State".
Government amendment No. 2:
In page 8, subsection (1), lines 40 and 41, to delete "in a substantial part of the State" and substitute "in any part of the State".
The text of section 5(1) repeats the terms of section 5(1) of the Competition Act, 1991, which is modelled on the wording of Article 82 of the EU treaty. However, it is arguable that the reference to "a substantial part of the State" is inappropriate for Irish markets. One legal commentator has stated:
The reference to a substantial part of the common market makes sense in the context of provisions designed to eliminate distortions in cross-Border trade and to help achieve a single market in goods and services throughout the member states of the Community, but given that a unified market exists in goods and services throughout the Republic of Ireland in that goods do not, for example, have to cross national frontiers, the rationale of the European Community is clearly absent.
It has been pointed out by Vincent Browne, solicitor, in his recent book on competition law, "It seems inappropriate that relief for abuse should turn on whether or not the abuser has a dominant position in a substantial part of the State." Having considered the arguments, I propose to remove the phrase "in a substantial part of the State" from this subsection and substitute the phrase "in any part of the State".
I have a query. The amendment refers to goods and services. Does that mean, for example, that if there was a monopoly or a near monopoly in one town or province in one particular trade, but not necessarily a large market share in the rest of the territory, it would be regarded as applicable in this case? Take my own business, for example, a supermarket that operates in only one province, but does not necessarily have a large market share in the whole State. Does this mean that the legislation would have implications for it if it were too large in that province? I am not sure I understand this – I have not mentioned the issue before. It is a query for the Minister.
The answer to the Deputy's question is yes. Clearly, there are markets within markets. It is reasonable, for example, to talk about the Dublin market and other regions in the country where there is a defined market.
Has the Minister a view on whether this legislation will affect pharmacies, for example? I have had communication from people representing the pharmaceutical business and they say they are very concerned that what they regard as the precipitate deregulation of the market will automatically lead – as it has, apparently, according to their briefing materials, in Norway – to the extinction of small local pharmacies and the growth and intrusion of combines from larger markets, particularly the British market. That seems to be a matter that affects competition, although I could be wrong. If there were two, three or four local pharmacies in a market town and they were extinguished, to be replaced by a branch of a large UK chain, would that constitute something that would be contemplated by the Minister in the Bill?
Since we had the Second Stage discussion here there have been changes in relation to pharmacies, which I very much welcome. The 1996 regulations which were introduced by the then Minister for Health were not just very anti-competitive, they were so restrictive that towns like Knock and the place from where I come, Newcastle in west Dublin, were among areas where no pharmacies could be licensed for the purposes of dealing with prescriptions under the GMS. That was very unsatisfactory, and some pharmacies were making up to £2 million.
Because there were court challenges in relation to this matter the Minister for Health and Children, on legal advice, revoked those regulations. However, it would be wrong for anybody to assume we have a deregulated market. For example, an Irish person who qualifies abroad cannot open a pharmacy here unless he or she has been in practice for three years in a pharmacy. This remains very unsatisfactory and I have been receiving correspondence of late from newly qualified Irish pharmacists who are very keen to see that restriction lifted. The Minister for Health and Children established a review group to deal with this matter. All we have done is remove the 1996 regulation so we are back to a pre-1996 situation.
Some time ago a company sought to acquire a number of pharmacies in the Republic. I referred that matter to the Competition Authority, which, while approving the acquisition on the grounds that it enhanced competition, stated that because of the restrictive nature of the 1996 regulations I should bring in a statutory instrument requiring every pharmacy acquisition to be subject to ministerial approval. Obviously that is no longer necessary now that we have removed for the moment the 1996 regulations. However, until the review is completed it will be difficult to say what the picture will be in relation to pharmacies. I do not share the view expressed that this is the end of community pharmacies. I think the market will operate as it does in other sectors. We do not have similar protections in other areas. I am keen to ensure we have the highest possible quality of pharmacy service throughout the State and that citizens, particularly elderly people, have easy access to a pharmacy close to where they live. That is what should happen and I believe it will happen.
Anybody wanting to acquire a number of pharmacies, depending on the scale, may meet the thresholds specified in the Bill, in which case, the approval of the Competition Authority will be required.
I thank the Minister for her reply, which is a model of clarity. It has certainly illuminated the area for me. I do not propose to go into it further because it is not directly germane, but it was a useful point and the Minister was very helpful in giving us her views on that. If either the Minister or I were principally motivated by considerations of finance, we obviously would have chosen a different profession – we would have been wiser to go into pharmacy.
I am concerned that the Senator's colleague, Senator Quinn, will start to open pharmacies.
Keep taking the tablets.
At least there the customer will remain king.
Amendment agreed to.
Government amendment No. 3:
In page 9, lines 8 to 12, to delete subsection (3) and substitute the following:
"(3) The putting into effect of a merger or acquisition in accordance with the provisions ofPart 3 of this Act, together with any agreements which are ancillary to the merger or acquisition and are referred to in the notification of the merger or acquisition under subsection (1) or (3) of section 17, shall not, in itself, be prohibited under subsection (1).”.
Amendment agreed to.
Section 5, as amended, agreed to.
NEW SECTION.
I move amendment No. 4:
In page 10, before section 6, to insert the following new section:
"6.–(1) For reasons of the public interest, the Competition Authority may by decision find that, on the basis of the information in its possession section 4(1) is not applicable to an agreement, a decision of an association of undertakings or a concerted practice, either because the conditions of section 4(1) are not fulfilled, or because the conditions of section 4(5) are satisfied.
(2) The Competition Authority may likewise make such a finding with reference to section 5(1).”.
First, I apologise to the Minister. In the past I have criticised the convoluted words that sometimes appear which can be difficult to understand. When I read this as it was suggested to me, I had huge difficulty understanding the point I was trying to make when it was put into these legal terms. The purpose of this amendment is to restore to some extent the balance of fairness that applied in the legislation that is being repealed by this Bill. It will also help to restore the balance between our natural desire to catch offenders and making life impossibly difficult for the majority of innocent businesses.
Until now the Competition Authority was obliged to respond to a query about whether an agreement, if entered into, would be in contravention of the law. However, the Bill not only removes that obligation, but it deprives the authority of the freedom to answer questions even if it wished to. That removal, combined with the presumption of guilt, puts an unacceptable burden on an individual who is in doubt. It means the Bill is anti-competitive because the risk is too great. I know it is not easy to understand, but the Bill would be improved if the amendment was accepted. The Bill has removed something which ensured that Ireland was a more competitive society. In most instances case law helps to establish what is permissible. Unfortunately, however, there is little or no case law in Ireland; what we have comes from Brussels. In that situation the ability of the Competition Authority to respond in the future as it has done in the past becomes more important to law abiding businesses.
I ask the Minister to note that my amendment does not compel the Competition Authority to do anything; it merely enables it. I started out with the idea of putting an obligation on the authority to respond in that way, but I was persuaded that it would place a burden on it which could become an albatross around its neck. I decided to settle for a mild, modest and weak enabling clause. I do not see any reason the Minister could oppose it. While it does not compel a response, at least it prevents the authority from saying that it does not have the power to make a decision.
Until now – I am sure it still applies – if a business wanted advice on its plans, it would probably have been able to telephone the Competition Authority which would probably have agreed to give advice. I understand the Bill removes from the Competition Authority not only the obligation to do that, if it ever had that obligation, but its permission to do it. Given that the authorities in Brussels have been inundated with a huge number of queries, it makes sense to remove the obligation on them to answer them all. My original intention was to oblige the Competition Authority to do it. The Minister will probably say that such a move might create a burden in future. I ask the Minister to permit the Competition Authority, if it so wishes, to reply to requests for advice ahead of time.
When I saw the amendment, I was reminded of IBEC's submission. Am I right in assuming Senator Quinn is a representative of IBEC?
No.
I wanted to clarify that in fairness to the Senator.
The Small Firms Association.
IBEC has lobbied on this issue. To the best of my knowledge, the onus of proof is on a citizen when dealing with the Revenue Commissioners in tax cases. They operate a different system. I am curious to clarify if it is proposed to allow the corporate sector to operate differently from private individuals.
We are dealing with two different amendments. Senator Mooney is dealing with amendment No. 5.
That is my mistake.
I understand Senator Quinn represents some of the voters of the National University of Ireland in the House. The proposed provision is similar to one in the draft regulation to reform the application of EU competition law. I understand it was inserted in the draft regulation in order to provide for greater legal certainty when the notification system is abolished. While I am sympathetic to the thinking behind the amendment, I do not propose to follow the draft regulation in this respect because I believe there is a danger, which has been acknowledged in discussions on the EU regulation, that the provision could lead to a reintroduction of the notification system by the back door. I also believe that we in this jurisdiction have a better way of dealing with the problems that exist.
Later I will propose an amendment to section 29 of the Competition Bill, 2001, which would empower the Competition Authority to issue guidance notices advising companies on how to comply with the provisions of the legislation. I believe this is a more flexible instrument to deal with the problem. If the Competition Authority could give free legal advice, many parties would be interested in availing of it. However, I do not believe it is appropriate that we should accept this amendment, although I can understand the thinking behind it.
I am disappointed with the Tánaiste's decision not to accept my proposed amendment. She mistakenly stated that I proposed the Competition Authority could be obliged to reply, but that is not what is in my amendment. I had originally planned an amendment that would force the authority to reply, but I thought it through and decided not to go ahead with it. I decided that it was better to enable them to reply, rather than to force them.
As the Bill stands, it appears that the authority is not permitted to give advice to anyone who seeks it. If my amendment was accepted, the authority would still be in a position to refuse to give advice. However, I believe that it is only right that a citizen should be able to contact the authority in order to establish what sort of activities are permissible. In light of the discussion we had earlier on assumption of guilt, this is very important. If this Bill goes through without my amendment, the Competition Authority will not be allowed to respond to requests for information ahead of time. My amendment would strengthen what we are trying to achieve in this Bill. If we do not do this, a business that is thinking of looking for advice will not be in a position to seek it. On that basis, we may end up with an anti-competitive Bill, which is not what the Tánaiste intends.
There is certainly nothing in the Bill to prevent the Competition Authority from giving advice in broad terms. The current chairman of the authority is in the vicinity of the Chamber, so I had better be careful about what I say. He is probably one of the most accessible chairpersons of any body in the State, and I believe that the authority itself operates on the same level of accessibility.
I understand Senator Quinn's point, that the word ‘may' can also mean ‘may not', and I can imagine the consequences of that. However, legal advice is freely available to companies in relation to particular matters, and I do not see how the authority would have any difficulty in offering informal advice on general matters. On this basis, I do not believe it is necessary to write Senator Quinn's amendment into the legislation.
I accept entirely what the Tánaiste has said. The chairman of the Competition Authority is in the House, and I am quite sure that if, in the past, I or any other citizen had contacted the authority for advice, we would have received it. My advice is that such an ability to respond will be removed by this Bill. I am not going to push my amendment now—
Could the Senator give me an example?
Suppose a business was considering making an arrangement with a supplier regarding agencies for the distribution of motor cars and they were not sure whether this would be in contravention of Competition Authority regulations, in the past they could have picked up the telephone and asked the authority directly. My understanding is that this Bill removes the right of the authority to respond to such requests for advice and information. I do not want to compel them to respond, but merely maintain their right to do so.
My reason for putting down this amendment is to confirm that there is no danger of the authority being denied permission to offer advice. I believe the Competition Authority, both as individuals and as a group, would be quite willing to accept and give advice if it suits them to do so. If they were inundated with requests for information to the extent that they could not do their normal work, then they might have to refuse to give advice. I do not think that this amendment interferes with their right to do so. I would be happy to withdraw the amendment if the Tánaiste would agree to give it some further consideration between now and Report Stage.
If I thought that the scenario painted by Senator Quinn was not covered by the Bill, I would definitely accept his amendment. I will give further consideration to the matter. This is a reasonable request, although I do not believe it is necessary. I think what the Senator is saying is that now that the notification period is gone, there is a vacuum in relation to the generality of advice. That is not my understanding, but I will revert to it at a later stage.
Amendment, by leave, withdrawn.
SECTION 6.
I move amendment No. 5:
In page 9, lines 19 to 31, to delete subsection (2).
I raised on Second Stage the point covered by amendment No. 5 and it is one which has already received a certain amount of attention in this House. I wish to raise it again to highlight its importance. I feel very strongly about this subsection. At the very least, this is not a clause that we should allow to go through just on the nod.
This subsection, according to the explanatory and financial memorandum:
introduces a new presumption which will apply in the prosecution of the more serious offences. This obliges the court to presume, unless the defendant can prove otherwise, that the object or effect of the agreement, decision or concerted practice at issue is to prevent, restrict or distort competition.
As I stressed when we debated this matter before, I do not in any way seek to minimise the gravity of the offences with which we are dealing. I look on a crime against competition as one that makes victims of the whole community. For this reason, I support the increased penalties that the Bill attaches to the more serious offences under this very legislation. However, this provision sends a shiver down my spine, because it strikes at the root of the way that we in this country approach justice. This provision, with a casual brush of the draftsperson's pen, sweeps away the presumption of innocence until proven guilty that underpins our entire system. As far as I know, for every other offence in the book, the burden of proof rests with the prosecutor, who must make the case for the defendant's guilt beyond any reasonable doubt.
What is so special about what we are dealing with here that we should wish to sweep away this basic principle? No doubt it will be argued that it will be difficult to get prosecutions without such legislation. Surely such an argument could be applied to any other case before a court. I am sure the authorities would love to have this provision extended to all offences because it would make their lives so much easier. However, it is not applied generally because legal tradition in this country has always held that placing the burden of proof on the prosecution is a necessary part of the system of checks and balances in the power of the State in its relationship with its citizens.
I wonder whether the negation of this fundamental principle is proposed because the offences involved are esoteric in nature and are not com mitted by ordinary citizens. Would we pass this provision so casually if the offence involved was riding one's bicycle without a light or not paying one's water charges? I do not believe so. Is it not the case, however, that we would like it to be included in legislation relating to terrorist, sexual and many other offences?
Does this provision represent a clash, within Europe, of two different systems of law? Are we conceding the principle that a person is innocent until proved guilty to bring us into line with practices in other European countries such as France, where the presumption of innocence is a much less fundamental principle than it is here? If so, we should declare that to be the case and be open about what we are doing. This is a bad development. Every Government would love to be able say to those accused of every type of offence, "We think you are guilty, now prove yourself innocent." To the best of my knowledge, that does not exist elsewhere in our system and we are now planning to enshrine it in this legislation. It will make for bad law and we should think twice before proceeding.
I would not say that I am without sympathy for Senator Quinn. However, there are precedents in recent legislation for a provision of this nature. I believe I am correct in stating that the Animal Remedies Bill, which is concerned with the use of illegal growth promoters, involves a similar burden of having to prove one's innocence. In other words, the traditional presumption that one is innocent until proven guilty is not universally applied. There are instances where people are required to make a rebuttal and prove their innocence. The provision in question is reasonable in circumstances such as this. Section 6(1)(a), (b) and (c) states that an undertaking which “enters into, or implements an agreement, or . makes or implements a decision, or . engages in a concerted practice”, which shows that the provision is restricted in terms of the potential offences involved.
Subsections (3), (4) and (5) refer to the grounds for entering a good defence and further limit the impact of the provision. Subsection (3), for example, states that it shall be a good defence to prove that "the defendant did not know, nor, in all the circumstances of the case, could the defendant be reasonably expected to have known, that the effect of the agreement, decision or concerted practice would be the prevention, restriction or distortion of competition in trade alleged in the proceedings."
I do not agree with Senator Quinn's comments about the esoteric dimension of the offences involved. Issues of this nature can have far-reaching consequences for society as a whole. Where agreements to which the section refers are entered into, there can be serious consequences for consumers and society in general. For those reasons, it is appropriate that a defendant should have to prove his or her innocence. I do not believe this is the most desirable way to proceed, but it is becoming increasingly difficult for authorities to prove conspiracy and collusion. There is no question that the people who might be responsible for some of these practices have access to the best and most expensive legal advice and I would not underestimate their capacity to devise weird and wonderful ways of avoiding their responsibilities under the law.
There is usually a look of bewilderment on the faces of my colleagues when I rise to speak. However, there were even more pronounced looks of bewilderment earlier when I spoke out of context in respect of this matter. Having being suitably chastened by the Chair, I wonder whether the Editor of Debates will assist me by transposing what I said earlier into the debate on this amendment so that I do not have to repeat it.
I referred earlier to the Revenue Commissioners and the fact that the onus of proof is on individual citizens in the context of their tax affairs. Am I correct in suggesting, as an ordinary citizen reading reports, that the tribunals currently operating in Dublin Castle place the onus of proof on the people being brought before them as witnesses and that lawyers for the tribunals seem to possess an enormous amount of information they do not reveal unless it is referred to or added to by a witness? In the context of what Senator Dardis stated, is there not already in existence a growing practice of placing the onus of proof on people?
There are two other points I wish to raise. I do not wish to cast aspersions on those involved in the corporate world, but let us consider the practices of some international corporations which seek to dominate and control markets. That awful word "cartel" seems to be coming into increasing use because secret protocols appear to be operating between corporations selling the same product in marketplaces to maintain price levels, etc. Considering the battery of lawyers employed by companies in the corporate sector, I am of the opinion that they may be in a position to hide some of these protocols to which I refer.
Will the Minister indicate what was her thinking in including this provision in the legislation? It has raised the angst of those who represent the business community here, the concerns of whom were so well articulated by Senator Quinn. I do not wish to diminish what the Senator said and I appreciate the importance of this matter. IBEC lobbied strongly in respect of it and seems extremely animated about it. IBEC believes this provision will have such an effect on day to day business that it has requested that it be completely withdrawn. Perhaps it would be helpful to the House if the Minister gave an indication of her thinking in including this provision.
I support Senator Quinn's amendment. I must make a declaration of interest here because I work for Independent Newspapers. I do not know on which side the company would be in respect of this matter but I feel obliged to make a declaration for the sake of doing so.
There is real danger involved, as a legal matter and a matter of principle, in changing, in respect of all law, the presumption of innocence. I am aware that there is a strong lobby in respect of the libel laws, for example, that the presumption of innocence should be removed from those who are supposedly libelled and that they should be obliged to prove their innocence. That is an absolutely outrageous suggestion and it has been made by journalists, of which I am one, and a certain union. It seems that everybody is entitled, regardless of whether they are involved in journalism, business or some other area, to be presumed innocent. This provision unambiguously changes that presumption and means that businesses will be believed guilty unless they can prove their innocence. There is a danger of over-reacting to certain events of which everyone is aware and, as a result, making a fundamental change which is not acceptable and not fair. Businesses, like individuals, are entitled to rights, but this provision will remove such rights and is the wrong route to take.
I take a different view which I will make abundantly clear. This provision is being included to make it easier to secure prosecutions. In the first instance, however, the prosecution will have to prove that an agreement, decision or concerted practice exists and that the accused was a party to it. When one proves one set of facts, it is not unreasonable to prove what will be the consequences. For example, if it is proved that people were a party to price fixing, it is not unreasonable to presume that this price fixing was aimed at restricting competition. Can anybody suggest another good reason for a person to be a party to price fixing?
This provision is not unique; it applies in other aspects of the criminal law and, of course, the accused can rebut it in court. Having proved the existence of an agreement or a concerted practice or a decision and that the accused was a party to it, it is not unreasonable to assume another set of facts. I have given the example of price fixing. Having proved there is an agreement to fix prices, it is not unreasonable to presume that was with a view to restricting competition.
The intention is to ring-fence what I refer to as the hard core offences. I am willing to look at the scope of these provisions in the light of what Senators have said. It is not intended to be lightly used. However, in relation to the hard core offences, where it has been proved beyond doubt that there was an agreement or decision or concerted practice, it is not unreasonable in those circumstances to presume that was done with a view to restricting competition. If Senators are in agreement, I will reflect on the matter and discuss with our lawyers how these particular provisions might be ring-fenced around the more hard core offences referred to in the Bill.
I am greatly concerned about the actual words used. This strikes to the very heart of our democracy and the provision whereby one is innocent until proven guilty. I note from what Senator Dardis and the Tánaiste have said that this is not the first time and that there have been other cases. I regret that greatly. I worry if we are now beginning to do this more regularly than I had thought that it strikes at the very heart of our tradition of democracy.
I did not understand clearly from the Tánaiste's reply whether this provision is being introduced because it is common in European law. From what I know of the situation in France, the same tradition of innocence until proven guilty does not apply. I really have great difficulty in this regard. Senator Dardis said it is becoming increasingly difficult to prove cases of this nature. Of course it is becoming increasingly difficult and I agree entirely with him, as I said earlier.
I support the Bill, including the heavy fines for which it provides. Every offence of this kind is not just against the business, it is against the community as a whole. We really need to find a way of making sure such behaviour is stopped and heavy fines and penalties are one way of doing that. I understand from Senator Mooney that IBEC has lobbied on this matter – I was not aware of that. We discussed a Bill last year on citizenship and naturalisation which has since been queried, perhaps because we did not give it sufficient attention. We should be very careful in this regard.
I am greatly worried about the use of words to the effect that one is guilty unless one can prove one's innocence. That is a slippery slope. The innocence of the individual is important. This issue relates to innocent individuals as well as businesses. The Tánaiste has said she will look at it again. I would prefer to hear her say she will take steps to ease the minds of those of us who are deeply concerned about the slippery slope we are approaching in this context.
Before Senator Norris contributes, I think he brought a beverage into the House. I do not think that is in order.
(Interruptions).
I am sorry, I cannot hear the Chair.
Acting Chairman
If it were allowed to continue we would have everyone doing likewise. It is not in order. The Senator should make his contribution.
I share the concerns of my colleagues on this matter, having already referred to it at Second Stage. This is not the only part of the Bill in which this occurs. It also occurs where there is a presumption that, if an e-mail is sent, the owner of the machine is the responsible party. I express some concern about that but I welcome the Tánaiste's undertaking to look at the matter again. That is very helpful.
Acting Chairman
Is the amendment being pressed?
Perhaps I can clarify the point raised by Senator Quinn. This is not common practice in other EU countries but, if I may repeat, I do not consider it unreasonable, having proved one set of facts – that somebody is a party to price fixing – to presume the purpose of that was to restrict competition. I do not understand how anybody could argue against that and, as I pointed out, the charge can be rebutted.
I wish to ring-fence the hard core offences and I do not want to bring the scope of the provision beyond that. Accordingly, I will consider a possible amendment to that effect.
Acting Chairman
Is the amendment being pressed?
Yes. The Tánaiste is not looking at the substantive issue, only aspects of it. I have a real worry about this House passing any Bill of that sort.
Question put: "That the words proposed to be deleted stand."
Tá
|
Bohan, Eddie.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, John.Dardis, John.Finneran, Michael.Fitzgerald, Liam.Fitzpatrick, Dermot.Glynn, Camillus.Hayes, Maurice.Kett, Tony. |
Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim. |
Níl
|
Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary. |
McDonagh, Jarlath.Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Toole, Joe.Quinn, Feargal.Ross, Shane. |
Tellers: Tá, Senators Dardis and R. Kiely; Níl, Senators Quinn and Ross.
Question declared carried.
Amendment declared lost.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
Mention is made of IBEC. I am not a member of IBEC and I do not necessarily hold a brief for them. However I agree with its point that in section 8 the liability of employees is too wide-ranging. IBEC points out that there is no definition of a manager or other similar officer and once the company offends, the burden of proof shifts to the employee in question who must prove non-consent. This is an onerous requirement and will be unworkable in practice as many will not be in a position to prove non-consent, particularly when acting on the direction of their own managers. I agree with IBEC and I would like to hear the Tánaiste's view on this matter.
This provision is in the existing Act and there have not been any problems with it. It is taken from there and is not new.
Question put and agreed to.
Section 9 agreed to.
SECTION 10.
Acting Chairman
Amendments Nos. 6 to 8, inclusive, are related and will be taken together by agreement. Is that agreed? Agreed.
Government amendment No. 6:
In page 13, subsection (1)(c), line 20, after “schedules or”, to insert “agreed”.
The inspiration for section 10 is section 57 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, which in turn implements certain recommendations of the Government's advisory committee on fraud and the Law Reform Commission. It is my view that serious competition offences are analogous to fraud. Moreover, the type of evidence adduced for fraud offences is similar to that required under this Bill which is likely to include technical economic assessments of the impact of the activity under scrutiny. In the course of the passage of the Criminal Justice (Theft and Fraud Offences) Act, 2001, through the Oireachtas, several Members were concerned at the scope of the provisions and sought to ensure that adequate safeguards for the accused be included. Accordingly, my colleague, the Minister for Justice, Equality and Law Reform, introduced a number of amendments to section 57. In the interests of consistency, these amendments seek to introduce the same changes to section 10 of this Bill.
First, only agreed summaries of evidence are to be supplied to the jury as in amendment No. 6. Second, amendment No. 8 will provide that, where the judge has ordered that an affidavit by an expert be given to the jury, that expert will be summoned as an expert witness by the prosecution and may be required by the trial judge to give evidence. Clearly, this would give the defence the opportunity to cross examine the expert about relevant matters. Amendment No. 7 also mirrors changes made to section 57 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, and complements the provisions in subsection 1(b). As this subsection provides that the opening speeches of counsel could be made available, it seems logical that the same provision be made available for the closing speeches.
Amendment agreed to.
Government amendment No. 7:
In page 13, subsection (1), between lines 23 and 24, to insert the following new paragraph:
"(e) the transcript of the closing speeches of counsel,".
Amendment agreed to.
Government amendment No. 8:
In page 13, lines 40 to 45, to delete subsection (3), and substitute the following:
"(3) Where the trial judge has made an order that an affidavit mentioned in subsection (1)(g) shall be given to the jury, the person who prepared the affidavit–
(a) shall be summoned by the prosecutor to attend at the trial as an expert witness, and
(b) may be required by the trial judge, in an appropriate case, to give evidence in regard to any relevant procedures or economic or other principles.”.
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 to 14, inclusive, agreed to.
SECTION 15.
Government amendment No. 9:
In page 18, subsection (6)(c), line 15, to delete “tenancy.” and substitute the following:
"tenancy, or
(d) control is acquired by an undertaking referred to in subsection (7) in the circumstances specified in subsection (8).
(7) The undertaking mentioned insubsection (6)(d) is an undertaking the normal activities of which include the carrying out of transactions and dealings in securities for its own account or for the account of others.
(8) The circumstances mentioned insubsection (6)(d) are that the control concerned is constituted by the undertaking's holding, on a temporary basis, securities acquired in another undertaking and any exercise by the undertaking of voting rights in respect of those securities, whilst that control subsists, is for the purpose of arranging for the disposal, within the specified period, of all or part of the other undertaking or its assets or securities and not for the purpose of determining the manner in which any activities of the other undertaking, being activities that could affect competition in markets for goods or services in the State, are carried on.
(9) Insubsection (8)‘specified period' means–
(a) the period of 1 year from the date on which control of the other undertaking was acquired,
or
(b) if in a particular case the undertaking shows that it is not reasonably possible to effect the disposal concerned within the period referred to in paragraph (a), within such longer period as the Authority determines and specifies with respect to that case.”.
I propose this amendment because there are types of acquisitions in relation to financial investment transactions where undertakings hold shares and other undertakings on a temporary basis for investment purposes. These trans actions are purely financial in nature and have no effect on competition and while technically they need to be notified at present under the 1978 Act, they are exempt from notification under article 3(5)(a) of the EU merger regulation. This is essentially because they do not result in control within the meaning of the regulation being acquired or transferred. As I have already adopted the EU merger concept of control in section 15 of the Bill, I agree that a similar provision for this type of transaction is appropriate.
Amendment agreed to.
Amendment No. 10 not moved.
Section 15, as amended, agreed to.
Section 16 agreed to.
SECTION 17.
Amendments Nos. 11 and 12 are cognate and will be taken together by agreement.
Government amendment No. 11:
In page 18, subsection (1), line 31 to delete "7 days" and substitute "1 month".
I am introducing these amendments in light of the views received from the business community, which felt that a requirement to notify a merger within seven days of the conclusion of the agreement was unreasonable due to the international nature of many transactions that require regulatory clearance in Ireland. Many transactions that are notified here also require regulatory clearance in other jurisdictions. Accordingly, it would be more appropriate to allow a period of one month within which a merger or acquisition must be notified after the conclusion of an agreement.
I accept that parties will endeavour to notify their merger or acquisitions as soon as possible because it is in their own interest to do so. A period of a month will allow them adequate time to prepare full and proper notification.
Amendment agreed to.
Government amendment No. 12:
In page 18, subsection (3), line 45 to delete "7 days" and substitute "1 month".
Amendment agreed to.
Government amendment No. 13:
In page 19, subsection (11), line 49 after "misleading", to insert "in a material respect".
This amendment will assist in providing legal certainty for notifying parties who might be concerned if any minor and immaterial errors were inadvertently included in the text of a notification as that notification and any subsequent clearance could be void. However, I emphasise that any material falsely or misleadingly submitted as part of a notification will render that notification void. The purpose of the amendment is to deal with human error.
Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.
Government amendment No. 14:
In page 20, subsection (1), line 15 after "applies", to insert ", or which is referred to insubsection (3) of section 17 and has been notified to the Authority in accordance with that subsection,”.
This amendment closes a loophole in the Bill regarding mergers or acquisitions which are voluntarily notified by parties in section 17(13). These are proposals which do not reach the financial thresholds for notifications, but where the parties are seeking immunity from challenge from section 4 or section 5 of the Bill. The amendment ensures that such voluntarily notified transactions are processed in the same way, and within the same timescales, as transactions which require to be notified, for example, mergers and acquisitions which exceed the threshold.
Amendment agreed to.
Acting Chairman
Amendments Nos. 15 and 17 to 19, inclusive, are related and will be taken together by agreement.
I move amendment No. 15:
In page 20, subsection 1(c), line 21, to delete “4 months” and substitute “ 2 months”.
These amendments are designed to reduce the time the authority will take for consideration of a merger. Under the proposed legislation, the authority will have one month to carry out an initial review of a proposed transaction and will then have a further three months to carry out a more detailed assessment.
My understanding of the purpose and benefit of competition law is that it should improve competitiveness, enhance efficiencies and reduce costs. It cannot be an efficient use of resources if a transaction is held up for nearly four months before the parties can have some finality to the deal. In particular, such a timescale might cause acute difficulties for any plc involved in a merger as it would effectively have to underwrite the cost of any offer pending the clearance or rejection of such a deal. While international companies might be able to sustain such a cost, I suspect it might place an onerous burden on Irish plcs and might inhibit participation in future transactions on their part. Any Irish plc would think long and hard about participating in a transaction that would be so expensive and place it at risk on the markets. Provided the Competition Authority is properly resourced, there is no reason that it should take it longer than ten working days to carry out an initial assessment of a transaction or that both the initial and subsequent examinations cannot be carried out within a two month period.
The Minister may say that the time limits proposed in the Bill are the same as those that apply at present and at EU level, but the fact that she is removing her role from the process, thereby potentially reducing the current period by up to two months, should be reflected in the legislation. The time limits that apply at EU level are for transactions that are much more complex, both in terms of the territories covered and the amounts of consideration involved. A four month consultation period may be appropriate for a transaction over €5 billion, affecting more than one member state, but it is disproportionate in a domestic context. As my colleague, Senator Coogan, pointed out on Second Stage, it is analogous to a situation where a person purchases a house but is forced to use a bridging loan for up to four months while awaiting the surveyor's report. I thank the Senator for taking the Second Stage debate for me.
I propose that the two month period for consultation might be extended where the authority requires additional information from the parties or in circumstances where the authority applies to the Minister for an extension. This is a reasonable amendment and I urge the Minister to accept it.
I am usually keen to have very tight deadlines but we also have to be realistic and make sure that the right thing happens from the consumer's point of view, which is the whole purpose of the Bill. It is shorter than the EU timeframe and is tight by international standards. With regard to the four month period, it is important to emphasise that the vast bulk of notifications, more than 98%, are cleared at first phase, that is, within one month of the notification being made or additional information being supplied where this is sought. The longer period only comes into play when notification raises significant competition concerns and is subjected to a full investigation. In such cases, the period allowed is necessary to enable the authority to carry out a proper investigation which entails receiving written submissions from interested parties and holding oral hearings as well as a detailed analysis of the economic effects of the proposal.
It is clearly in the interests of the consumer that the effects of mergers that might lessen competition, thus increasing prices and reducing consumer choice, are thoroughly investigated. It is also in the interests of the notifying parties that the deadlines should not be too tight as that would result in mergers being prohibited within what might otherwise be permitted, subject to conditions, if sufficient time was available to investigate means by which anti-competitive effects could be alleviated.
With regard to the proposal that the one month period proposed in section 22 should be reduced to ten working days, my Department's experience of operating the current mergers regime would strongly support the view that one month is the minimum period required to carry out an adequate initial examination of notified agreements. The same period is allowed for the first phase examination under the EU merger regulations. Accordingly, I am not disposed to accept the amendments.
I respectfully disagree with the Minister.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 18, as amended, agreed to.
SECTION 19.
Government amendment No. 16:
In page 21, subsection (1), to delete lines 31 to 33, and substitute the following:
"(a) shall, unless the circumstances involving the merger or acquisition are such that the Authority considers it would not be in the public interest to comply with this paragraph–”.
This amendment makes special provision for exceptional cases where, for example, a merger needs to be processed urgently in the public interest.
Amendment agreed to.
Section 19, as amended, agreed to.
Amendment No. 17 not moved.
Section 20 agreed to.
Amendments Nos. 18 and 19 not moved.
Section 21 agreed to.
SECTION 22.
I move amendment No. 20:
In page 23, lines 30 to 44, and in page 24, lines 1 to 40, to delete subsections (1) to (8), and substitute the following:
"(1) In the case of a media merger the Authority will make the determination as to whether the merger would–
(a) increase the concentration of the market in such a way that the undertaking concerned would control more than 50% of the market in the State, and
(b) whether the merger would result in a diminution of the plurality of view available to the public.”.
This amendment is intended to draw attention to the difference that exists between certain purely commercial mergers and mergers in the media industry. It focuses attention on the dangers posed by a concentration of power in one company or individual. As this is a question of public opinion, it is not just a matter of efficiency. It is a matter of democracy and of making a plurality of voices and viewpoints available to the public.
This is an area where it would be useful to concentrate the majority of power in the hands of the authority for simple reasons of human fallibility and the application of pressure to political persons. The Minister is, of course, a sterling person of strong nerve and courage, but that may not always be the case. Politicians are subject, increasingly, to pressure from the media. In 1994 the authority found that the Independent Newspaper group had abused a dominant position in the marketplace with regard to the Irish Press. At that time the authority had no legal powers of redress. A couple of years later, a similar issue in the media arose, but that time, though there was the possibility of legal sanction, nothing was done. That was a ministerial responsibility. I cannot say what the motives for inaction on that occasion were and they may very well have been perfectly reasonable.
I am concerned that leaving this exclusively in the hands of the Minister would expose that Minister to considerable pressure from what is one of the most powerful lobby groups. Those who control the press have inordinate and growing power and it is in the interests of democracy that we include additional, special criteria when we look at the question of the media. It is not just a question of the substantial lessening of competition, there is also a question of plurality and market share. If 80% of people decide they want to go on a yellowpack airline, that is fine. Let them have 80% of the market as that does not distort the democratic process. However, if 60% or 80% of media interest, print or broadcast, is in the hands of one individual, that is extremely dangerous for democracy.
I am not suggesting that my amateur attempt to express this in legal terms is satisfactory. It may well be that the Minister will need to look at this and make an amendment on Report Stage. I do not claim immense wisdom or drafting skill, but it is such a significant matter that it requires a good deal of attention. It is not appropriate simply to leave the normal commercial criteria in place when one is dealing with an interest group as powerful as the media. I hesitate to utter the name, as I have used the example frequently, but the concentration of power in the hands of media moguls like Rupert Murdoch is highly dangerous. People like that use their positions to follow clear political lines for their own commercial advancement. I take particularly to heart his disgraceful attack through his newspapers on the Dalai Lama, the reason for which was a desire to exploit commercial opportunities in the Republic of China. It is not at all appropriate that this policy should be carried on. While we cannot clip the wings of Rupert Murdoch from the Seanad Chamber of the Oireachtas, we can at least initiate a process whereby we protect our democratic institutions from potential abuse. I am very interested in the Minister's response.
This matter is of particular interest to me also. As I said on Second Stage, I welcome the statutory obligation to clear media mergers through the Minister. However, another issue has arisen on foot of the IBEC submission. It was an issue to which I had not given much serious thought until I read that. The Minister can probably clarify the matter in her reply. In the context of corporate mergers generally, the Competition Authority will make decisions on purely economic grounds as they affect the market as distinct from the national interest. I am not happy to find that is the case and I am interested in knowing what the thinking was when the legislation was drafted. I would be grateful if the Minister outlined why she has not felt it necessary, while welcoming ministerial intervention in media mergers on the one hand, to ring-fence corporate mergers on national interest grounds as distinct from economic grounds.
There is an international practice and the IBEC submission referred to the Australian experience as follows:
Most of our European counterparts have this protection built into their own legislation and we would be almost unique in abandoning that right. A recent Australian case neatly illustrates the danger. Woodside, an Australian company owning the Australian gas reserve, was the subject of a take-over bid by Shell. The Australian Government prohibited the merger on the grounds that to allow a multinational to take ownership of the Australian gas reserves would be contrary to the Australian national interest. If a similar scenario were to arise here, under the new Bill, that merger would go through.
I am somewhat concerned. Perhaps there is something in the body of the legislation which will afford protection in the case of mergers which might be inimical to the national interest and I would be grateful if the Minister clarified this section.
I am genuinely concerned at the increasing domination of the television market here by Rupert Murdoch's organisation, particularly Sky. It is astonishing that within such a short time we are talking about the introduction of digital television through satellite dishes, an issue which only emerged in September 2000, little over 15 months ago. There are now, according to Sky's own figures, in excess of 200,000 subscribers in the Republic of Ireland. If you consider that the entire television market, based on the collection of the licence fee, is in the order of about one million, Sky now has a market share of over 20%. That is frightening in its implications, especially in the context of listed sporting events, an issue which has entered the public arena over the past few weeks. While this is parallel to, rather than part of, her brief, I urge the Minister to give serious consideration to the issue of listed sporting events, notwithstanding the submissions made by the three major sporting bodies.
I cannot understand where the conflict lies, particularly in the case of the GAA, if the Government designates the all-Ireland football and hurling finals exclusively as listed events. In effect, this would mean that the Murdochs of this world would not be able to bargain with the GAA, give them millions of pounds for those two matches and then put them on pay-per-view. If our national games were available only on pay-per-view, it would mean that the only way one can see them would be by paying a subscription fee to a non-national company, which has no involvement or interest in or concern for the culture or the ethos of this society. I understand that at the end of the day it is about money, but frankly it seems rather unfortunate that we have reached a stage in which the GAA is using a Murdoch organisation to get RTE to pay more money for our national games. Without going into the area of soccer or rugby, it is about money at the end of the day.
This is a time for political leadership on the part of the Government. It should face the three sporting unions because I do not agree with this. Make no mistake about it, the day is coming quickly – we have seen this in the case of the Ireland and England game at Twickenham – when the only way one will be able to see national sporting events, that is, finals rather than an array of intermediate fixtures, is if one pays to view them at home or if one goes to a pub to watch them on a big screen. What a future that conjurers up, that one will watch major national sporting events in the local pub because that will be the only way to see them without paying through the nose. Once one goes down the slippery slope of pay-per-view, there is a cash cow for those who are supplying the service. This has been discovered in America, where the baseball authority found to its cost that it lost support among people who gave up going to the games and it reversed its pay-per-view arrangements with the major networks.
I raise this only in the context of media mergers. I tried to outline what has been happening with the increasing market penetration by a non-national television company. I enthusiastically welcome the right of the Minister of the day to veto mergers in that regard, but it also begs the following question. Why does the legislation seem – I use that word advisedly – to be lacking in this regard? Where vital national interests are involved, it seems that the Competition Authority can make decisions on mergers on purely economic grounds.
I understand the reasoning behind the amendment but I do not understand why the Senator would wish to delete a large part of section 22 to accommodate the amendment. I take issue with Senator Norris on the matter of the 50% control and how one identifies 50% control. Would one identify it by virtue of circulation, capitalisation or by other means? The definition of "relevant criteria" set out in section 22 deals with that situation much more effectively than any talk about 50% control of the market or, indeed, the effects of the merger, which, by definition, would be taken into account by the authority and by the Minister in making the determination.
The relevant criteria are very broadly drawn. They include strength and competitiveness, the extent to which ownership in the State is spread among individuals and the extent to which ownership and control of particular types of media business is spread among individuals and other undertakings. That is a much better way of defining what might be dominance or of determining what might be the effect of a merger in the market.
The issue of Sky television, etc., has a relevance here. I take the point, which is properly made, that some of these issues are more to do with broadcasting legislation than with the Competition Bill, nevertheless the Senator has a point. The degree to which there is lack of competition was very visible before the game between Ireland and England, and, indeed, during it and afterwards, leaving aside the fact that the game could not be seen on terrestrial television at the same time as it was being shown on Sky Two. The relevance is that Sky News in its coverage concentrated exclusively on the game between Ireland and England when there were two other rugby internationals at the weekend, one in Cardiff and the other in Italy. It was as if the other matches were not taking place. The reason they do not cover such games is they are just promoting their own product. They are using their news bulletins to promote their own projects. That is the competitive aspect rather than the broadcasting aspect of the issue.
I do not disagree with anything Senator Mooney said about broadcasting, but there is a serious competitive dimension to this and it needs to be attended to. I would not criticise Sky's coverage of the game itself, but I would criticise the way the company's news bulletins deal with one game to the exclusion of other sporting events taking place at the same time.
I want to add a supplementary example on which the Minister might be prepared to comment. In response to Senator Dardis, I made it clear that this draft of the amendment was not precious to me. Therefore, I have no great sensitivities in that regard and I hope that the wisdom of the House will prevail. However, there is a general concern that the media, because of its role in forming public opinion and in informing public opinion, need to be protected in a special way and that purely financial considerations are not sufficient, that it is a question of the expression of views and informing the public. I think we must look at that extremely carefully.
I want to give an example. This time I am not hitting my bête noire, Mr. Rupert Murdoch. I am just raising a question about an institution which I greatly value and cherish, that is, RTE. We are lucky to have a responsible, good national broadcasting service, and particularly stations like Lyric FM. RTE deserves the support of the citizens of this country, but it would concern me, for example, if RTE started gobbling up all the little local radio stations because they give a good particular service. The local radio stations give a variety of local information and opinion. If they were in the control of the central State broadcasting service, I am not sure that that variety could be adequately protected. Even though I am an admirer, a supporter and, I may add, a regular licence payer of RTE and I am very glad to contribute to its coffers in my small way, I would not welcome even an institution like RTE gobbling up the majority of local stations. In terms of affording the public a plurality of viewpoint, it is important that we treat media in a special way.
Senator Norris should have added that he is a frequent contributor to the said station and other stations.
Unfortunately, my lovely series on the great houses of Ireland has been axed because of the forthcoming election. It has been postponed until the autumn.
It is a shame.
It is a shame but I am still favourably disposed towards RTE.
My programme was axed completely and it had nothing to do with the election. Therefore, the Senator knows more than I do.
I will not start answering for the axing of the respective programmes. I have not been offered a programme on RTE or any other station.
She was on Radio Luxembourg once.
I certainly agree with what has been said about the role of the local media. They are playing an increasingly important role in helping, at one level, to knit communities together and give a sense of identity to communities. Stories which would not in a million years hit the national airwaves and are big news at local level are being extensively covered. They have had a very positive effect on communities, particularly across rural Ireland. The listenership figures are very impressive. More than 50% of radio listeners in many parts of the country are listeners of local stations.
I must admit that nothing gave me more concern than this issue, that is, what is the best way to deal with media mergers. Since we began to put together this legislation, I have spent more time discussing this issue than perhaps any other aspect of the Bill. Ironically, I would prefer a regime where it could be done by others for some of the reasons Senator Norris mentioned and because media mergers will not be dealt with purely on economic criteria nor just for the reasons some Members mentioned.
The media have a powerful role to play in our lives in informing – or misinforming – entertaining and so on. They are a powerful influence over every society. The world of the media is changing dramatically. I did not realise how many people had Sky Sports until last Saturday. I must live in some type of sheltered environment. I do not have it myself but I was amazed by the number of people who did and who offered me the use of their television for the duration of the unfortunate match last Saturday. It was unfortunate because it made depressing viewing.
The Minister for Arts, Heritage, Gaeltacht and the Islands has power under the Broadcasting Act, 1999, to designate what would be broadly called "national sporting events". I remember when it was being discussed at Cabinet how keen everyone was to ensure these would be available free of charge to citizens. I regret they have not yet been negotiated. I know the Minister for Tourism, Sport and Recreation, Deputy McDaid, and the Minister, Deputy de Valera, have been in discussions with sporting organisations on this matter. It is a great pity it has not been resolved. I share the views expressed in that I would hate to think that sporting events like the All-Ireland hurling or football finals would not be widely available to the community at large without the payment of a fee to Sky Sports. This is especially so in the case of elderly people who might not be in a position to go to another person's premises or to a local hostelry. I hope the matter can be resolved quickly but it is outside my remit.
I wish to take up the point made by Senator Mooney that corporate or non-media mergers do not attract public interest or what he called "national interest criteria". Legislative measures in this regard have been in place for 22 years and I do not believe they have ever been used. I cannot think of an example where something might not be in what is called "the national interest". There are many examples where individuals or companies were supported and it was assumed, wrongly in my opinion, to be in the national interest. I remember one operator in the beef sector who received the lion's share of moneys avail able and that was assumed to be in the national interest. I never quite understood that. If the players are large enough, it is often assumed anything they want should be given because it is in the national interest. I do not support that view. I will reflect on this issue and Senator Dardis made a valid point on it.
The Commission on the Newspaper Industry established by my predecessor which reported in 1996 and the Competitions and Mergers Review Group recommended that we go beyond what could be called normal competition or economic criteria in determining mergers in the newspaper industry because of the influence newspapers have. The relevant criteria, which we have written into the Bill, have been taken from the recommendations of the newspaper commission. They are in section 22(9) and include:
(a) the strength and competitiveness of media businesses indigenous to the State,
(b) the extent to which ownership or control of media businesses in the State is spread amongst individuals and other undertakings,
(c) the extent to which ownership and control of particular types of media business in the State is spread amongst individuals and other undertakings,
(d) the extent to which the diversity of views prevalent in Irish society is reflected through the activities of the various media businesses in the State, and
(e) the share in the market in the State of one or more of the types of business [and so on].
We widened the concept of control in the Bill to include not just control by shares but also loan guarantees and so on. That covers a situation which has existed and which will have to be taken into account in future before someone could take control of a newspaper or media interest.
That said, what we have devised in the Bill is perhaps a cumbersome solution. There is a role for the authority which will deal with what one could broadly call the competition side. There is also a role for the Minister, the Oireachtas and the courts where mergers are concerned. Given that media mergers have such a huge influence on democracy, diversity within society and freedom of expression and that one of the hallmarks of a democracy is freedom of the press, we felt on balance that it was better to leave what is in the Bill as the mechanism. If the Competition Authority had the expertise to deal with what I could broadly call "public interest issues" in addition to its expertise in competition, I would have been happy to have left the entire process with the authority. We have not yet come forward with something better and I hope we can do so before the Bill is enacted. Everyone who has examined this, including those who advise me, agrees. My own belief is, having spoken to some colleagues in Opposition parties who have an interest in this area, that what we have in the Bill is, on balance, probably the preferred solution.
Strict percentages, besides being difficult to prove, are too rigid and prescriptive. The criteria outlined in the Bill are appropriate, as is the role given to the authority relating to competition aspects. The authority will be the determining body in the competition element, but the wider issues which broadly reflect what I have called broader public interest grounds will be left to the Minister and, ultimately, the Houses of the Oireachtas. That is provided for in the Bill.
I thank the Minister. She has been very gracious in suggesting this is a troubling area and one which is very difficult to resolve clearly. She has indicated she will examine it again. I will also do that and take further advice. I would be very happy if it were left with the Competition Authority.
My experience politically, which is limited I suppose, is that, as a group, we tend to be a little pusillanimous in dealing with the media. I clearly recall being in the Cathaoirleach's office when the editors of the principal newspapers were in attendance. The lickspittling which took place was obscene. I thank God I am an independent Senator with a pretty independent electorate because I gave it to the editors right between the eyes on the question of libel. I am afraid we as a group are subject to pressure on this matter. Any time the media are discussed in the House, there is fear, hostility and deference because people are afraid. That is a pity.
I would like to think the Competition Authority would be entrusted with this area. Its personnel are able to determine these matters in terms of ensuring a plurality of views are expressed, which is the essential ingredient. I thank the Minister for her helpful reply and perhaps between us we will devise a form of words or at least come up with some ideas which may be helpful to her advisers and draftspeople in resolving the matter.
I agree with what Senator Norris said about the attitude of the media, but he can probably be heartened by the fact that not only is his electorate independent, the people generally have an independent streak. Despite the best efforts of those in the media to give the impression that they are in control of matters, the people tend to make their own decisions. It is a little like our attitude to religion. We listen carefully to what the Pope has to say but then do our own thing. Senator Norris would not fully understand that in the context in which I say it, but it is to let him know that we are not totally monolithic.
I am grateful to the Minister for her reply. My concern was about goods and services from airlines, post offices, banks and other areas undergoing a period of transition. It is a matter of grave concern to people in rural areas that there is a withdrawal of goods and services from their areas. Banks are the other element of this argument. A future Government could sell off the family silver to the point where all these services would be privatised. The rationalisation and consolidation which has happened and is continuing to happen in the broadcasting area could then happen with these services. Once we begin to deregulate other areas it will inevitably lead to consolidation and mergers.
We may find that people from outside the country will take a purely commercial view of these matters. That was where I was coming from in the context of uneconomic as distinct from national interest reasons. I am heartened by what the Tánaiste said. She agrees it is not a black and white area and I hope the matter will be kept under review.
Acting Chairman
Is the amendment being pressed?
I will withdraw it and perhaps table a substitute amendment on Report Stage.
Amendment, by leave, withdrawn.
Government amendment No. 21:
In page 24, subsection (5), line 15 after "publish", to insert ", with due regard for commercial confidentiality,".
This amendment relates to the media section, particularly the requirement of the Minister to publish the reasons for making a decision on a media merger. I tabled the amendment to ensure any commercial confidential information is secure from publication.
In response to Senator Mooney, I am not sure there is much difference between us. What is important is competition in regard to EU requirements, public utilities and so on. The EU requires that we do not distort competition between member states, engage in anti-competitive behaviour or use state aids to subsidise certain operations which would decrease competition. However, there is no requirement under the EU for us not to have post offices or telephone kiosks. Our public service obligations would allow us to do all that, provided it does not distort competition. Sometimes the name of competition is used to falsely close things down, which I regret. It is important to have a range of services available to people who live in rural Ireland.
Clearly, media matters concern us all. I understand there is a poster on lamp posts throughout this city, which I have not yet seen, to the effect that I am involved in some controversy about the morning after pill. A friend of mine who called me on my mobile phone wondered what this was all about. I have not yet seen the article. When damaging articles are written, particularly if one has not been contacted or asked for an opinion, which I have not been, it is very difficult. I am not saying this is a libel matter, because I do not believe it is. It is probably a political comment in the context of other matters currently in the public domain. We must be very careful in regard to the libel laws because if one's good name is taken away, it is extremely difficult, notwithstanding court procedures and so on, to get it back. As legislators, it is not just right that we should defend our own good names, but the good names of other citizens who do not have the opportunity to affect the law in the way we do. I share Senator Norris's views on these matters.
Amendment agreed to.
Government amendment No. 22:
In page 24, between lines 17 and 18, to insert the following subsection:
"(6) For the purpose of the exercise of the power undersubsection (4), the Minister may consider such submissions or observations from persons claiming to be interested in the matter as the Minister thinks proper.”.
Under this amendment, I am proposing the introduction of a new subsection to provide that the Minister in making a decision on a media merger may consider submissions or observations from interested parties. I believe the Minister should have the fullest information in making such a decision.
Amendment agreed to.
Government amendment No. 23:
In page 24, subsection (9), to delete lines 42 and 43 and substitute the following:
" ‘broadcasting service' means a broadcasting service to which the Broadcasting Act 2001 applies (and includes a sound broadcasting service within the meaning of the Radio and Television Act 1988);".
The amendment seeks to make it clear that sound broadcasting is included in the definition of "media business" in the Bill. The existing definition in the section of "programme material" comes from the Broadcasting Act, 2001. "Programme material" in the Broadcasting Act means audio-visual material or, where used in the context of a sound broadcasting service, audio material which includes advertisements and material which when transmitted will constitute a direct offer to the public for the sale or supply to them of goods and other property whether real or personal or services.
The definition of "programme material" is linked to the definition of broadcasting service, also taken from the Broadcasting Act, 2001. "Broadcasting service" is defined as a service which comprises compilation of programme material of any description on which it is transmitted or relayed for reception by the general public. It was felt this definition did not adequately cover sound broadcasting services. The amendment is being tabled to ensure there is no ambiguity regarding the inclusion, for example, of independent local and national radio stations.
Amendment agreed to.
Acting Chairman
Amendments Nos. 24 to 26, inclusive, will be discussed together by agreement.
I move amendment No. 24:
In page 25, subsection (11), line 41, to delete "system or" and substitute "system,".
The amendments seek to widen the definition of media mergers and recognise the fact that telecommunication services such as telephone lines are increasingly becoming channels for the transmission of content. For example, the advent of ADSL technology means the simple telephone line may become a channel for transmission of data and programme material. Given that one company currently owns or has interests in local and national print media, cable and telecommunications, it is crucial that we examine any increased consolidation or media mergers in the future. It is in the public interest that there should be diverse ownership of the media and that any increased concentration of ownership is reviewed, having regard to these new technologies.
It has come to my notice that there are newer technologies, such as digital subscriber lines, which use telecommunication lines to transmit data. In future it may be possible to transmit or retransmit programme material from television or radio through telecommunication lines. The question arises as to whether these DSL services are covered by the Bill. My intention is that the Bill should cover all means of transmission or retransmission. I am not concerned so much with the technology as the content. I will look again at the section to ensure the definition "media business" covers all possible technologies for the transmission or retransmission of programme material.
As this is a highly technical area, I need to consult both the Minister for Public Enterprise and the Minister for Arts, Heritage, Gaeltacht and the Islands. The technical definitions in this section originated in legislation or regulations emanating from those two Departments. Therefore, I want to ensure that any changes I might propose are in line with existing legislation and regulations governing broadcasting. I hope to consult the Office of the Parliamentary Counsel on these amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 25 and 26 not moved.
Section 22, as amended, agreed to.
SECTION 23.
Acting Chairman
Amendments Nos. 27 to 32, inclusive, and amendment No. 34 form an alternative to amendment No. 33 and all may be discussed together.
I move amendment No. 27:
In page 26, subsection (1), line 1, after "Court", to insert "and the Supreme Court".
I will speak on behalf of Senator Norris until he arrives. I know he is concerned that the limitation regarding the High Court is not in the best interests of democracy and, therefore, he wonders why there should be a limitation on going to the Supreme Court. Perhaps this is a misunderstanding and the intention is to leave it to the Supreme Court. I urge the Minister to accept Senator Norris's proposal. I am sure the Bill will be strengthened by such a proposal.
I outlined this matter on Second Stage because I felt it was an unnecessary limitation, particularly in light of the case I instanced of the Orange mobile telephone licence which came to the notice of the High Court. Judgment was given by a very distinguished, careful, thoughtful judge, Ms Justice Fidelma Macken. There was a disagreement and the case was appealed to the Supreme Court. Given the wisdom of members of the Supreme Court, that decision was reversed. That is a clear, historical precedent whereby it was useful and very valuable to have recourse of appeal to the Supreme Court. In light of that history, it appears unwise to remove the possibility of appeal to the Supreme Court. For that reason, all the amendments are together. In amendment No. 34, the deletion of subsection (9) is required, which specifically prevents appeal to the Supreme Court. In the other amendments, "and the Supreme Court" is simply added in.
I should not have the presumption or arrogance to anticipate anything but if I may be just slightly prophetic, I feel in my bones that my amendments may be accepted on the logical grounds that there is a Government amendment, amendment No. 33, that refers to an appeal to the Supreme Court. There could hardly be such an appeal if the Tánaiste was not gracefully prepared to accept this series of amendments. I thank my colleague, Senator Quinn, for proposing this amendment on my behalf in my momentary absence.
Senator Norris is right. I have only the preliminary list of Seanad amendments, but amendment No. 33 is in my name and it is precisely to provide for an appeal to the Supreme Court. It covers the points made by Senator Norris. I thank him for making these points on Second Stage, as did Senator Quinn.
I notice that the Government amendment states that any appeal "shall lie only on a question of law". My understanding is that this is routine in the Supreme Court anyway. I have been involved in an appeal to the Supreme Court myself. I remember the lawyers saying to me that no new evidence could be adduced at that point by virtue of the nature of the Supreme Court and all they would deal with would be points of law arising from the High Court. I could be incorrect in this regard, but that was my information in that case.
In the Bill as originally drafted, we had ruled out any appeal to the Supreme Court and we are now ruling it in, albeit on a point of law. After all, we have the authority, then the High Court, and now we have the Supreme Court on a point of law. That is a reasonable compromise.
Amendment, by leave, withdrawn.
Amendments Nos. 28 to 32, inclusive, not moved.
Government amendment No. 33:
In page 27, lines 7 to 9, to delete subsection (9) and substitute the following:
"(9) An appeal to the Supreme Court against a decision of the High Court under any of the foregoing provisions of this section shall lie only on a question of law.".
Amendment agreed to.
Amendment No. 34 not moved.
Section 23, as amended, agreed to.
Sections 24 to 27, inclusive, agreed to.
SECTION 28.
Government amendment No. 35:
In page 29, subsection (1), between lines 26 and 27, to insert the following paragraph:
"(d) to publish notices containing practical guidance as to how the provisions of this Act may be complied with;”.
This is a valuable addition to the functions of the authority contained in section 28(1). It permits the authority to issue practical guidance to firms about how to comply with the Act. This will be useful, particularly in view of the abolition of the notification system and many of the issues raised earlier by Senator Quinn.
Amendment agreed to.
I move amendment No. 36:
In page 29, subsection (1), between lines 34 and 35, to insert the following paragraph:
"(g) To liaise and consult with the public, public representatives and representatives of business, farming community, trade unions and consumers in the performance of its functions under this Act.”.
I am suggesting this amendment because it is vital that the authority be keenly focused on its overall objectives. The pursuit of finer points of economic theory is all very fine, but needs to be firmly focused on the practical benefits business consumers receive from a more competitive and effective competition regime.
I am also suggesting this additional function for the authority because it is important that it adopts a carrot-and-stick approach to its enforcement role. I suspect that it is a far better use of the authority's time if it is able to educate people in the benefits of competitiveness and to highlight the types of transactions and arrangements that are prohibited.
I am a strong advocate of consultation and discussion. After all, this is a very small country. As Senator Coghlan knows, he and I consult constantly, notwithstanding the fact that he is in a different political home from me. The idea of having a mandatory requirement or legislating for something that should be, by its nature, a voluntary act is not good. I know the authority has many seminars, briefings, consultation and dialogue with all kinds of representatives, from professional bodies to trade unions, employer organisations, farming organisations, etc. That is done frequently on an ongoing basis.
I am not a fan of writing into the legislation the compulsory requirement that one must consult. All sorts of legal difficulties could arise. Could the authority ever do anything without consultation? It is better left to the regime that operates at the moment. There is a suggestion that the chairman of the authority should attend annually a meeting of the relevant Oireachtas committee. That is a good suggestion, which I will be taking on board in the Bill. I am not keen to have a compulsory, legislative or statutory requirement on the authority to consult particular groups.
I take the Tánaiste's point that it may be unnecessary. If I understand correctly, the Competition Authority will consult and liaise in any case as a matter of course. If that is so, I accept the Tánaiste's point.
Amendment, by leave, withdrawn.
Section 28, as amended, agreed to.
Sections 29 to 31, inclusive, agreed to.
SECTION 32.
Government amendment No. 37:
In page 33, lines 13 to 19, to delete subsection (9).
The reason for the deletion of this subsection is to meet the concerns that were represented by various sectoral regulators involved and the Competition Authority. The point was made that the subsection would complicate unnecessarily the decision-making process of the bodies concerned. It is a fair point and may well have been raised here during the debate on Second Stage.
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
Acting Chairman
Amendments Nos. 38 and 39 are related and may be discussed together, by agreement.
I move amendment No. 38:
In page 34, lines 1 to 13, to delete subsection (1) and substitute the following:
"(1) The membership of the Authority shall consist of a chairperson and ordinary members who should be appointed only after open competition.".
I very much hope that the Tánaiste will accept this amendment because it seems to be absurd to establish a competition authority and exempt it from the requirements of competition. If one has a competition authority and the Minister for Justice, Equality and Law Reform dreams up some employees, sticks them in, it is not appropriate. If we cannot have competition in the Competition Authority, where on earth will we have it? I am in favour of open competition, even on occasions when one knows perfectly well who the right person is. He or she usually gets the job.
Senator Quinn will agree with me in saying that we have an absolutely wonderful secretary-political assistant. She applied for the job in the James Joyce Centre, was shortlisted to three people, but did not get it, against my advice. Then, when the job for secretary came up, I said to Senator Quinn, "I know exactly the person for this job. She will be wonderful, but we still have to have an open competition. I just want to mark your cards – I will let this person know that the job is available because I hope she will apply for it." She did apply. Again, she was shortlisted to three candidates. Senator Quinn said he would get his personnel person to consider the lady in question and he recommended her. She now works for us, extremely efficiently and well. However, even in those circumstances, we went through the open competition and I am glad we did. We got what we wanted in the end.
I feel strongly that there is a logical inconsistency in having a competition authority and having it say, "We will not have any competition here. We will regulate for everybody else and insist that they have open competition, but we are not going to be stuck with that." I hope very much that the Tánaiste will accept this amendment.
I am reliably informed that one of the comments frequently heard from businesses that have been involved in discussions with the authority in the course of a merger is that the authority lacks any real commercial insight or practical experience. I am sure a bunch of economists can be expert, but they also need to be aware of the environment in which the real commercial world functions. It is vital that the membership of the authority should have wider experience and not be limited to economists, lawyers and academics. Additional expertise could be provided without compromising the enforcement role of the authority and this is the purpose of my amendment No. 39.
I would go further than my colleague, Senator Norris. In light of Dáil reform generally, not only should there be competition for such places but the applicants should come before the relevant Oireachtas committee, in much the same way as happens in the United States. They should be questioned to determine if they are capable and competent for these positions. That is a view that is not specific to this authority. I am just raising the hare in general that we might very quickly reach a point when this will be necessary.
I am pleased there is no exclusion specifically written into this legislation about members of local authorities. It had been the bane of our lives in this House – I can see the Acting Chairman smiling because we have jousted together on this issue down through the years. Whenever new bodies are being created under the aegis of the State, the parliamentary draftsperson has always written in a subsection saying that members of local authorities are excluded, as if they were somehow pariahs in society. I can understand that this is a much more sensitive area and there may be potential conflicts if interest. I am sure the Minister will be able to clarify the point for me. I hope that the vast reservoir of expertise that rests in local authority membership will not be discarded.
I would love to know how Governments decide who will be appointed to these bodies. It is a bit like a secret society and we never know where these people come from. How are they targeted? How are they identified? Is there a list somewhere to which people can apply? Is there a senior civil servant in some section to whom letters can be sent recommending Joe Bloggs or Mary Smith for a particular position? I do not want it to sound like I am engaging in a bit of whimsy here because it is a very serious issue. It is very important that the Minister has pointed out in the legislation specific areas of law economics, public administration, consumer affairs or business generally.
I hope the Minister will give some indication as to her thinking about the appointment of women to the Competition Authority. It is very important because there seems to have been some slippage in this regard recently. As a strong advocate of women participating in public life generally, and I have the book to prove it – I have been waiting to say that for years – I hope some recognition will be given and that suitable women will be appointed to these boards.
I want the Minister to consider the whole approach taken in this section bearing in mind the point that Senator Norris makes and what Senator Mooney said about how things will be done in the future. On Second Stage I said that the whole strength of the Competition Authority lies in its independence, both perceived and actual. In answer to Senator Coghlan's point, I believe that the current authority is very strong. I do not know the individuals on it other than the chairman, but it is held in very high regard.
A key part of its independence is its independence from Government, especially in this country, where competition matters tend so often to have a political edge to them. The Minister will recall that the OECD report was concerned about the question of independence of the authority. There are ways for the Government to exercise control over the Competition Authority. One is through the purse strings, as was witnessed in recent years where the authority was unable to do some of the work it wished to do. We talked about this on Second Stage and I hope we made some progress. The other is through its control over the appointment and dismissal of members of the authority.
I grant that this section imposes on the Minister the requirement to appoint only people with certain types of relevant experience. However, as far as independence is concerned, that is only a fig leaf. There are two ways to increase the independence of the authority and neither is fully suitable in this case – in his wording, Senator Norris put his finger on it. That is why I did not table my amendment and I ask the Minister to consider it and give us a response on Report Stage.
The two ways to distance the Government from the appointment process are by entrenching the appointment, in other words, by making it very difficult for the person to be dismissed, or by delegating the selection process to the Civil Service Commission. It would not be good to entrench the appointment to the same extent as we do with the Ombudsman, for instance, because this is a job that is envisaged as being permanent and it is probably not desirable that members of the Competition Authority would be permanent. Nonetheless, they could serve a second term and the power of the Minister in reappointment is what worries me.
Perhaps the appointment should be handed over to the Civil Service Commission. That body is recognised as being impartial and independent. Using it would give the process the necessary distance from Government that we seek. I know it is a basic principle of Government to cling to all the power it has ever had. However, in this case I ask the Minister to consider if the good of the legislation does not demand a greater degree of independence than is envisaged for this authority if it is to do its work in the way the Bill envisages. The words Senator Norris used "open competition" are wide enough to suggest that another solution such as that of the Civil Service Commission might solve this.
Senator Mooney spoke about the possibility of the authority coming before an Oireachtas committee in the future as happens in the United States. I am not sure if that is the right solution, but maybe it is. However, the independence of this authority is paramount and we must make sure that no future Government damages that independence.
I would like to clarify the scenario I painted. After the appointment is made by Government, it should be sanctioned by an Oireachtas committee.
There is much food for thought there. I assure the Senators that I want to ensure we have the best people. Over the past five years I have had the privilege of presiding over the appointment of a new director general for FÁS, a new chief executive for Enterprise Ireland and IDA Ireland and a new chairman for the Competition Authority, and there is a process under way to identify a new chief executive for Forfás.
She has picked some good men.
And women.
I am talking about the executive positions. In all cases I asked for the best possible team of people to be put together so that the best person could be picked. We have been very fortunate. We have terrific people, notwithstanding the level of remuneration, which as we know is not what it should be. I am reluctant to say too much because the chairman is sitting in the press gallery. The current chairman came back from the United States. Although I read what he said about taxis, he was not someone who was familiar to me. We are very privileged that we can get so many good people to serve in public positions for what are inadequate remuneration packages.
Although I am not in a position to accept the precise wording of Senator Norris's amendment, I accept the principle, and this issue is with the Office of the Parliamentary Counsel. I want to keep the option of having part-time authority members for obvious reasons to do with having expertise in particular areas or in cases when a number of members may have conflicts. It is good to have the option to go for part-time authority members from time to time.
As regards gender balance and local authority members, we must remember this is an executive authority. It is not like a governing body, the RTE authority or the board of a semi-State company. The individual members who make up the authority have executive functions. Therefore, there must be a certain level of skill and expertise and the sum total must have a broad range of legal, economic and other expertise. The current group has that and there is one female on it. It would be wrong to have it prescriptive in terms of gender or expertise because that would be too restrictive. If one gets good people and if they have the capacity to be able to see the big picture, one gets the right decisions. In addition to their skills, we want people of integrity who cannot be got at. We have been fortunate in that we have all that together. It is a five year term, it is not for life, although individuals can be reappointed.
As regards local authority members, I know there will be an election soon and I am sure Senator Norris would like all appointees to be Trinity graduates, Senator Quinn would like some of them to be NUI graduates and Senator Mooney would like them to be local authority members. There would be a complete conflict of interest between being a public representative and an executive member of any authority. It would be an impossible position as there would be a conflict in relation to many decisions. It is not a bad thing in principle that public representatives are represented from time to time in organisations where decisions are made. It would be more relevant if the authority met the local authority members' association from time to time. I do not know if the current chairman has done that. I know seminars are arranged on an annual or quarterly basis. Perhaps there might be a role for the authority to keep in touch with local government members and to inform them in the way it informs Members of the Oireachtas and others about what it does. That could be worth exploring. Perhaps Senator Mooney would like to explore it or, if not, he might like me to do so on his behalf.
I would be happy to refer that to the Minister.
If Senators are happy, I will come back with a suitable amendment along the open competition grounds, which is a good idea.
I thank the Minister for accepting the principle of the amendment. Senator Mooney was slightly ungallant when he raised the question of gender balance and suggested the Minister's slippage was showing. That is not the case.
I hope the Minister bears in mind that one of my other concerns was that there could be political loading. I accept what she said about the usefulness of having people drafted in from time to time to add special expertise, but I would not like to think there was a possibility the jury could be stacked by ministerial appointment with a considerable number of other people. The Minister has spoken generously of the standards of integrity, intelligence and commitment of the people appointed. I pay that compliment back to her. We cannot predict we will always have someone of that calibre in that role. Governments and Ministers change and it is wise for us to ensure there is no temptation for Ministers, if there is an awkward situation, to load in extra people. I hope the Minister bears that in mind in addition to the question of open competition. I thank her for her helpful reply.
On a point of clarification, I do not wish Senator Norris's comment to pass. Like his love affair with Mr. Murdoch whom he mentions at every opportunity, I have an obsession with gender balance which I mention when the opportunity arises. It would be difficult to accuse the Minister of what the Senator suggested considering that of the four members of her parliamentary party, two of them are women and are serving in Government.
The word "slippage" attracted me.
Amendment, by leave, withdrawn.
Amendment No. 39 not moved.
Government amendment No. 40:
In page 34, subsection (8), to delete all words from and including ", unless" in line 36 down to and including "act" in line 38.
This amendment will have the effect of preventing the Minister from permitting a member of the authority who has a conflict of interest to act in the matter concerned, notwithstanding that conflict. I am retaining the obligation on a member to inform the Minister of a conflict of interest. That obligation to inform an appropriate person outside the authority is a healthy discipline. The Minister, as the appointing authority of members, seems the most appropriate person for this purpose.
Amendment agreed to.
Section 33, as amended, agreed to.
Sections 34 to 39, inclusive, agreed to.
SECTION 40.
Amendments Nos. 42 and 43 are related to amendment No. 41 and all the amendments may be taken together.
I move amendment No. 41:
In page 37, subsection (1), line 33, to delete "4 months" and substitute "one month".
This amendment deals with publication of the report and is an attempt to make it more direct and efficient. I am happy the Competition Authority would be capable of publishing it within one month of the end of the financial year. I am sure the Minister, who has good relations with the personnel there, could check that with them. I imagine if they are anything like the people with whom I am familiar, they will be able to do that. They do not need four months – one month would be sufficient. I recall Senator Quinn, as a businessman, making a similar point about other legislation in the past year or two. I urge the Minister to delete "4 months" and substitute "one month". Let us not dally over it, but get it out there as quickly as possible.
I do not see the point in pulling the Minister in between the Competition Authority and the Oireachtas and the general public. The report is not for the Minister's unique consumption. The public and the Oireachtas are entitled to have it directly. Ministers in the past, for example, sat on such reports and we had to apply pressure through the Oireachtas to get them. It would be disillusioning for an authority to prepare, draft, publish and submit a report to the Minister and then for it to disappear for a while. It would be better not to involve the Minister in this responsibility and to let the Competition Authority publish its report.
Amendment No. 43 removes the phrase "The Minister shall lay" and substitutes "A copy of such report shall be laid". We can have the report within one month and it does not need to go to the Minister exclusively, although a copy will go to the Minister. It is the responsibility of the authority to ensure that a copy of the report is laid before the Oireachtas. It is not the Minister's responsibility as it happens automatically. That is cleaner, neater and more efficient. I hope the Minister will find it in her heart to agree with it.
I support Senator Norris. I have had experience of looking for an RTE report of 1 November the previous year. However, I found that while RTE had sent it to the Minister, it had not been published 11 months into the following year. As soon as the question was asked in the House, it was published within days. I have also had the experience in the past, although not to the extent of my experience in An Post, of setting standards to publish our report as quickly as we could after the end of the financial year and to hand it to the Minister after three months. We had to urge the Minister to publish it because we wanted to set standards.
The Minister has done well to seek independence from the Competition Authority, but I do not understand why the Competition Authority should not publish it instead of giving it to the Minister to do so. I am not sure what happens in the case of the Ombudsman which is where we want independence. I imagine the Ombudsman publishes his own report. I would be amazed if the Bill to create the Ombudsman's office restricted the Ombudsman from presenting his report to the Minister.
My other concern is the length of time. If the Competition Authority presents its report within four months, and the Minister is allowed sit on it for four months, it will possibly be eight months before it is published. I am sure that is not the wish of the Competition Authority, and it is certainly not the wish of the Tánaiste. However, a future Minister might be happy to delay it for his or her own reasons. I urge the Tánaiste to accept particularly amendment No. 42, which states:
In page 37, subsection (1), line 34, to delete "make a report to the Minister" and substitute "publish a report".
That would strengthen the independence of the authority.
Amendment No. 41 proposes:
In page 37, subsection (1), line 33, to delete "four months" and substitute "one month".
One of the difficulties is that the financial year now coincides with the calendar year. I would hate the chairman of the authority to have his Christmas lunch so indigestible that he could not concentrate on producing the report. Perhaps one month is a bit tight, although it could be less than four months, and I commend that to the Minister.
As there are so many references to the Minister within the Bill, it is appropriate that the authority should make a report to the Minister. However, that should not preclude its publication. I suggest to Senator Norris that rather than providing for the deletion of "make a report to the Minister", the amendment should provide for making a report to the Minister and also publishing it. The degree to which people read these reports that are laid before the Houses of the Oireachtas is open to question, but it is appropriate that the report be laid before the Houses. These three elements are not incompatible. The Minister would receive a report, the report would be published and would also be laid before the Houses.
I welcome the thrust of what Senators Norris and Quinn are attempting to do here. From the very first day Senator Quinn came into this House he has used a philosophy that he also uses to great effect in his own business. On many occasions I have heard him talk about trying to reduce the amount of time involved in the publication and conveying of reports to the Houses, and I welcome that. I share Senator Dardis's view that there might be a compromise between one month and four months that the Minister might consider – perhaps two months.
The Minister should consider, if it is not already in the Bill, providing that the authority publish the report to the Minister and to the Oireachtas, perhaps simultaneously. I yesterday discovered to my surprise, and to that of my colleagues on the Joint Committee on Heritage and the Irish Language, that the Broadcasting Complaints Commission has not laid its annual report before these Houses since 1991. That is almost 11 years. I ask the Minister what sanctions there are for failure to lay such reports, right across the whole panoply of Government, before the Houses of the Oireachtas. The Joint Committee on Heritage and the Irish Language is attempting to find out why the Broadcasting Complaints Commission did not discharge its obligations. It has meant that Members have been unable to debate the detail of the reports since then because they do not have them officially. A situation could equally arise in relation to the reports under current discussion, whereby the reports could not be debated in the Houses of the Oireachtas unless they are legally laid before the Houses.
On the initial reading of this section I felt it would be sufficient to oblige the Competition Authority to publish the report to the Minister. However, in light of the experience of the Broadcasting Complaints Commission and what has emerged here, perhaps the Minister might take the view that there should be a double locking mechanism. There would be an obligation to convey the report to the Houses of the Oireachtas at the same time as to the Minister.
I am tempted to ask Senator Mooney why the Houses of the Oireachtas did not know until yesterday that they had not received the report for 11 years.
I asked that question.
These are reasonable amendments. The idea of two months is reasonable and I am prepared to accept, although I know there will be horror behind me, that the reports to the Minister and the Oireachtas be published at the same time. It is reasonable that a Minister with responsibility for a particular area should receive the report. It does enhance the independence of the authority not to have a filter whereby it goes to the Minister and then on to the Cabinet.
Annual reports at the Cabinet table are large thick books. They are usually printed by the time they go there anyway. It is a formality. A civil servant comes across with hoards of these things in big bags, one for everybody in the audience, plus the secretariat. It is quite a big task, so if we can even improve it at that level it might be no bad thing. The idea of its going to the Minister and the Oireachtas and being published within a two month timeframe is a reasonable compromise.
I thank the Tánaiste for accepting the amendment. I understand that she will return with her own wording at Report Stage. That is fine. It means I have no further work to do. I also seem to recall the report of the inspector of mental hospitals being delayed. I do not intend any criticism of any particular individual but this was raised on a number of occasions.
I wish to make one other point with regard to the capacity of a venal Minister to delay publication. I recall a situation on 11 September when a spin person in Britain said, "Great, this is the day to hang out all the dirty linen because it will be buried." There is a possibility of a Minister waiting for a glorious opportunity when there is a big story all over the place and discreetly emitting the report, which is therefore buried. This appears, in Britain at least, to be a fairly consistent practice. I gather that a female executive, Jo Moore, had to resign yesterday or the day before precisely on these grounds. It was suggested that she had felt that the death of Princess Margaret would—
And the spinning civil servants with her.
And the spinning civil servants. Is there such a thing? I have heard of rotating Taoisigh but I am not sure about a spinning civil servant.
Please return to the amendment, Senator Norris.
I thank the Tánaiste for accepting the principle of the amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 42 and 43 not moved.
I move amendment No. 44:
In page 37, between lines 40 and 41, to insert the following subsection:
"(4) Each year, the authority must attend before the Joint Oireachtas Committee on Enterprise and Small Business, to discuss its performance over the past 12 months and its future work programme for the next 12 months, provided that the Authority shall not be obliged to discuss any detailed matter that is currently under examination, investigation or prosecution by the Authority and shall be mindful of its obligations under section 30 of this Act.".
This is something to which my learned colleague, Senator Coogan, referred at length in his Second Stage speech. It is important that the authority has some formal interaction with the Oireachtas. While we cannot discuss details of individual prosecutions or investigations it is important that we have some dialogue.
It would be beneficial from both our perspectives, and I hope the Tánaiste can see some merit in this suggestion. I believe it is in keeping with her own views, as expressed at some length on other amendments.
I support Senator Coghlan on this. I referred to it in my Second Stage speech and hoped the Minister would take it on board. One of the practicalities has been referred to by Senator Mooney with regard to the Broadcasting Complaints Commission, which it was discovered had not published since 1991. It was recognised only because an issue arose. It should be manda tory to publish and lay before the Houses. A mandatory attendance on an annual basis, perhaps subsequent to the reports being given to the Minister and submitted to the Houses, would be a healthy exercise.
The Minister referred to the local authorities, and I know it excluded them. I agree there might be a conflict of interest in that case. However, there are avenues whereby the committee can meet with the General Council of County Councils and LAMA and the AMAI at their annual conferences. If they were to contact these associations and inform them that there may be issues which are relevant to local authorities, they could actually have the debate and discussion there. At that level the local authorities should be satisfied. I am of the opinion, however, that the House should meet the committee on an annual basis not to discuss issues which might be pertinent or contentious at the time, but those which have been addressed.
Senator Coogan referred to this matter on Second Stage and I am happy to accept the intention behind the amendment. We will draw up a formal wording for Report Stage. What has been suggested will enhance the independence of the authority and its chairman, which is good. Obviously, we will be obliged to refer to the "relevant committee" when drawing up the wording because I cannot say whether there will be a Joint Committee on Enterprise and Small Business in the future.
Amendment, by leave, withdrawn.
Section 40 agreed to.
Sections 41 and 42 agreed to.
SECTION 43.
Government amendment No. 45:
In page 38, subsection (2), line 43, after "that power or", to insert "those".
This is a technical amendment, proposed for reasons of clarity.
Amendment agreed to.
Amendments Nos. 46 to 50, inclusive, are related and may be discussed together by agreement.
Government amendment No. 46:
In page 38, subsection (3)(a), line 45, to delete “to enter and inspect” and substitute “to enter, if necessary by force, and search”.
Section 43, as it is now drafted, largely restates sections 20 and 21 of the 1991 Act with one notable exception, namely, that the powers of authorised officers have been extended to allow them to enter the homes of directors, managers or other members of staff or undertakings which are under investigation. This new power is in line with proposals of the European Commission on the modernisation of regulation 17 of 1962. However, since the introduction of the 1991 Act, the Competition Authority has made representations to me that there are serious limitations on its search powers and that this has hampered it in enforcing the law. For example, the authority is not authorised to remove original documents, which are an essential element of the required proofs; rather, it must take copies of each document which impedes the efficiency of the search and causes difficulty with such evidence in a criminal trial.
As stated earlier, I consider some anti-competitive offences analogous to serious fraud offences and I believe the authority should have at its disposal the full range of investigative tools. Senators will be familiar with another item of legislation, the Company Law Enforcement Act, which I introduced recently. Sections of that Act gave the Director of Corporate Enforcement authority to seize original materials, require people to give certain information, such as personal information, and relevant documentary evidence and to use force, if necessary. For example, where files are kept in a locked cabinet and the key is withheld from the authorised officer, force may be necessary to prise open the cabinet. These amendments seek to align the provisions of this section with the powers available to the Director of Corporate Enforcement and to enable the Competition Authority to prosecute offences effectively.
This is exciting stuff, with doors being kicked open, etc. The Tánaiste made a good case for the inclusion of the use of force, but I assume it will only be employed in extreme and fairly serious circumstances. What is proposed will lend a kind of glamour and excitement to the work of officers of the Competition Authority. I look forward to the dramatisation, for television, of further episodes in this series.
Amendment agreed to.
Government amendment No. 47:
In page 39, subsection (3)(b), line 1, to delete “to enter” and substitute “to enter, if necessary by force, and search”.
Amendment agreed to.
Government amendment No. 48:
In page 39, subsection (3), between lines 8 and 9, to insert the following paragraph:
"(c) to seize and retain any books, documents and records relating to an activity referred to in paragraph (a) found on any premises, vehicles or dwelling referred to in that paragraph or paragraph (b) and take any other steps which appear to the officer to be necessary for preserving, or preventing interference with, such books, documents and records,”.
Amendment agreed to.
Government amendment No. 49:
In page 39, subsection (3), lines 9 to 16, to delete paragraph (c) and substitute the following:
"(d) to require the person who carries on an activity referred to in paragraph (a) and any person employed in connection therewith to–
(i) give to the officer his or her name, home address and occupation, and
(ii) provide to the officer any books, documents or records relating to that activity which are in that person's power or control, and to give to the officer such information as he or she may reasonably require in regard to any entries in such books, documents or records,".
Amendment agreed to.
Government amendment No. 50:
In page 39, between lines 36 and 37, to insert the following subsection:
"(6) Any books, documents or records which are seized undersubsection (3)(c) may be retained for a period of 6 months, or such longer period as may be permitted by a judge of the District Court, or if within that period there are commenced any proceedings to which those books, documents or records are relevant, until the conclusion of those proceedings.”.
Amendment agreed to.
Government amendment No. 51:
In page 39, subsection (8), line 52, to delete "12" and substitute "6".
This amendment is introduced to harmonise the penalties for summary offences throughout the Bill. All summary offences in this Bill are punishable by a fine of €1,900 with an equivalent term of imprisonment, which is six months, except in this section where the period is 12 months. The amendment is proposed to ensure consistency between fines and their corresponding jail terms.
Amendment agreed to.
Section 43, as amended, agreed to.
Sections 44 to 46, inclusive, agreed to.
SECTION 47.
Government amendment No. 52:
In page 41, lines 28 to 34, to delete subsection (2) and substitute the following:
"(2) Every regulation under this Act and every order under this Act (other than an order undersection 2, subsection (4) or (5) of section 17 or section 22(4)) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either such House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.
This amendment provides that, in addition to every regulation made under this Act, every order, including an order to amend or revoke the Restrictive Practices (Groceries) Order, 1987, is required to be laid before each House of the Oireachtas. The exceptions referred to are commencement orders under section 2, which do not normally have a parliamentary scrutiny requirement, orders relating to the creation of special classes of mergers under section 17(4) and (5) and media mergers under section 22(4) for which separate provision is made for parliamentary scrutiny.
Amendment agreed to.
Section 47, as amended, agreed to.
Sections 48 to 50, inclusive, agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
I ask the House's indulgence to take the Remaining Stages now. I know the Minister has given certain commitments with regard to amending the Bill, but I ask the House to agree to those commitments being carried through in the Dáil. I do so because an extremely limited number of sitting days remain available to us before the end of the session and we are not sure how many will be available beyond that point. In the interests of pushing the legislation through, I would be grateful if the House would agree to take the Remaining Stages now.
That is agreed.
I have no difficulty with that. I presume, therefore, we will not have an opportunity to say anything further.
We will have an opportunity to do so on Report Stage.
That is fine.
The Bill will be returned to this House from the Dáil with the amendments made to it.
Are we taking Report Stage now?
We are taking the Remaining Stages of the Bill. However, the amendments the Tánaiste promised to introduce on Report Stage will be tabled in the Dáil. The Bill will then return to the Seanad.
Will we have an opportunity to speak further in a few moments?
No.
We can comment on Report Stage.
There are no amendments tabled in this House for discussion.
I beg the Chair's indulgence to make a brief comment on Report Stage.
The Senator will have the opportunity to comment on the question, "That the Bill do now pass." We will now proceed to Report Stage.
Agreed to take remaining Stages today.