Agricultural and Food Supply Chain Bill 2022: Committee Stage (Resumed)
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This meeting has been convened to consider Committee Stage of the Agricultural and Food Supply Chain Bill 2022. I welcome the Minister for Agriculture, Food and the Marine, Deputy McConalogue, and his officials: Ms Sinéad McPhillips, assistant secretary general, agrifood strategy and sectoral development; Ms Angela Robinson, principal officer, food industry development division; Mr. Noel Clancy, principal officer, unfair trading practices, UTP, enforcement authority; and Mr. Ray Sheehy, assistant principal officer, food industry development division.
We are on section 14, amendment No. 12, in the names of Deputies Carthy and Browne.
SECTION 14
I move amendment No. 12:
In page 12, line 17, after “inspections” to insert “, including unannounced inspections,”.
This amendment is very simple. It is to ensure that unannounced inspections can be part of the regulator's remit.
I am happy that the Bill caters for this already but I have no objection whatsoever to including it here as well. I am happy to accept the amendment.
That is the way to do it.
Amendment agreed to.
Section 14, as amended, agreed to.
Section 15 agreed to.
SECTION 16
I move amendment No. 13:
In page 13, between lines 30 and 31, to insert the following:
“(4) The regulator may at any time request comment from interested parties on any aspect of a code of practice submitted under this section.”.
This is to insert the proposition that the regulator may at any time request comment from interested parties on any aspect of a code of practice submitted under this section. Therefore, if a code of practice drawn up by a processor is intended to encourage compliance with unfair trading practices, prevent the exploitation of producers and reduce the level of formal complaints, then it would be helpful for the regulator to be able to ask producers for their views on any proposed code of practice.
I thank Deputy Carthy. What I suggest here is that we reflect more on it between now and Report Stage. I would not necessarily be inclined to accept it but I will consider it further. I need to consider whether allowing the regulator to seek views on those documents would be counterproductive and discourage the submission of codes of practice in the first place. This is because the codes of practice referred to in this section in particular concern documents and codes of practice that may be submitted by a person or persons representing one or more buyers. These codes are therefore documents owned by the person providing them to the regulator. As it is a voluntary decision whether codes would be submitted for review by the regulator, the amendment may give rise to a reluctance to submit such codes. It would be helpful to the regulator’s work if buyers submit codes of practice for review as this could help to raise awareness of unfair trading practices and also bring consistency across the agrifood supply chain. Therefore, I want to be careful not to discourage this.
In addition, the Deputy may be aware that under section 20(2)(e) of the Bill, the regulator may itself issue codes of practice and guidelines and also that section 20(2)(d) already provides that the regulator “may consult with suppliers, buyers and other persons who the regulator considers could assist in the performance of its functions.” There is, I believe, sufficient cover in the Bill for appropriate consultation.
I am happy to reflect on the amendment and we can discuss it further on Report Stage if Deputy Carthy agrees. One of the things being encouraged here is that companies would submit their codes of practice to the regulator on a pre-emptive basis for its input and advice before companies adopt them. It is not about existing codes of practice or codes that are pertinent to an existing investigation. It is to enable the regulator to work with companies so they can engage and consult with the regulator in advance to get its input and advice on codes of practice. If we were to amend the legislation to say that where a company decides to initiate an engagement with the regulator to get its advice, the regulator would circulate the codes of practice more widely, it would happen before the company adopts the code. That may dissuade companies from engaging. It would be useful for us both to reflect on that further. We want to achieve this. It is an important and useful function for the regulator but on initial examination, I am concerned that it could make the section less effective which I know is not the Deputy's intention.
We can deal with it on Report Stage. The language used in the amendment is "may" so it does not impose any obligation for it to be shared with third parties. This will benefit all concerned. If a processor is going to the effort of engaging with the regulator on a proposed code of practice, it would make sense that the people who are intended to benefit from it would have some input before it is adopted. I will take the Minister's invitation to reflect on it before Report Stage.
Amendment, by leave, withdrawn.
Section 16 agreed to.
Amendment No. 14 not moved.
Sections 17 to 19, inclusive, agreed to.
SECTION 20
Amendment No. 15 has been ruled out of order.
Amendment No. 15 not moved.
I move amendment No. 16:
In page 16, line 6, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Question proposed: "That section 20, as amended, stand part of the Bill"
I will make the point again with respect to broadening the scope of the regulator to include consumers as well as buyers. We made the argument extensively at the last meeting, but I ask the Minister again to consider that we have as wide a scope in the powers and functions of the regulator as possible.
I am happy to comment on that. I will consider further the point Deputy Carthy is making in this instance. It is a different point from the one he made before. This relates to the regulator consulting and engaging with consumers. This section already empowers the regulator to consult with anyone the regulator considers could assist in the performance of its functions. It already has the capacity to engage with consumers. What we want to achieve is a regulator that brings about transparency in the food supply chain. Everyone, including consumers, has a stake in and wants to see that. This section enables the regulator to engage with anyone it sees fit. The Deputy is requesting that consumers be specified but they are already covered.
This is different from the point we discussed at the last meeting, which related to changing the nature of the regulator to usurp the powers of the Competition and Consumer Protection Commission which has responsibility for protecting consumers' rights at the moment. In this Bill we are trying to provide protection to primary producers. In this instance, the Deputy is suggesting the regulator could be assisted in its work by engaging with consumers, among others. In principle, I do not have an issue with that, but I will reflect on the point further before Report Stage.
I welcome that. As it stands, while the section states "other persons", it also specifies buyers and suppliers. Clearly consumers are the third link of the chain and it would be helpful if they were specified.
Question put and agreed to.
SECTION 21
I move amendment No. 17:
In page 16, line 13, to delete “two” and substitute “three”.
The committee called for the size of the board to be increased. The Minister has done so and we welcome that has been included in the Bill. However, the proportionate representation of primary producers is therefore reduced as it has remained at two members. The amendment therefore substitutes the number two for three to ensure that there would be three representatives of farmers or primary producers on the board.
I am happy with this objective. The objective of the office of the regulator is to ensure primary producers are front and centre, get fair play in the food supply chain and that there is fairness throughout the food supply chain. The board initially consisted of five members of which two were to be representatives of primary producers. The committee put forward a report to me which included 20 recommendations, one of which was to increase the number of board members from five to seven. I accepted that. I substantially accepted 18 of the 20 recommendations the committee made in its report. This was one them. Deputy Carthy is suggesting that now that I have accepted the increase from five to seven members, it would be appropriate to increase the primary producer representation from two of five to three of seven. The principle is appropriate.
As the board comprises eight members, including the chair, I propose that three of the eight members should be primary producers because I do not want to preclude the option of the chair being one of the three primary producers. I propose to table an amendment on Report Stage that achieves what the Deputy is looking for. I agree with the principle, but instead of three of the seven ordinary members, it would be three of the eight members, which number includes the chair.
Amendment, by leave, withdrawn.
Section 21 agreed to.
SECTION 22
I move amendment No. 18:
In page 16, line 26, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23
Amendments Nos. 19 to 22, inclusive, are related and may be discussed together.
I move amendment No. 19:
In page 16, line 31, after “of” where it secondly occurs to insert “up to”.
This relates to the term of office of an appointment. The Bill originally specified that it should be five years and was rigid and specific about that number. Some amendments were proposed dealing with how that could be staggered and so on. The most sensible and appropriate way to deal with it would be to state the term of appointment for members of the board as "up to" five years. That provides the opportunity of a maximum term of five years. At the moment the public service code recommends the maximum term of service on a State board to be eight years. If we had a rigid five years in this Act, it would mean that, if members of the board were to be appointed for a second term, and they could only be appointed for five years, they would then be on the board for ten years which would breach the current best practice guidelines on full length of service on a board.
The way it is now structured, amendment No. 19 provides for appointments to the board for a period of up to five years. This means, for example, you could choose to appoint the board at the start for five years and, subsequently, reappoint some members for three years, or it could be decided at the start to appoint board members for four years or whatever. It is not as rigid and is a better way to deal with it. These amendments propose that a member of the regulator shall hold office for a period of "up to" five years from the date of appointment, "as the Minister shall determine".
The deletion of sections 23(4), 23(5) and 23(6), which outline what was a more elaborate approach in trying to ensure that the membership of the board would be staggered so that everybody would not step down at the same time, means I can now get rid of those other three amendments. Amendment No. 19 proposes to make the period "up to" five years as opposed to a rigid five years. We can then delete ancillary pieces about how the appointment of members of the board should be staggered. It is just a lot cleaner and a much more straightforward way to do it. It will also be a great deal more robust in the long term.
What amendments are being deleted?
Sections Nos. 23(4), 23(5) and 23(6) will be deleted. It was initially the case that each member of the board would be appointed for a fixed five-year term, with no flexibility regarding that. We wanted to mitigate the fact that we might have everybody there for the full five years and retiring, for example, at the same time. In the original Bill, section 23(4) states: "On each anniversary of the establishment day, one member of the regulator (other than the chairperson) shall retire." Section 23(5) states: "The member of the regulator to retire under subsection (4) [which I just read out] in a given year shall be the member who has been longest in office since last being appointed, subject to subsection (6)" and section 23(6) states: "Where there are members of the regulator who were appointed on the same day, one of whom would be obliged under subsection (5) to retire, the member who is to retire shall, unless those members otherwise agree, be determined by lot."
Deputy Carthy tabled an amendment stating, subject to all that, that if somebody is to retire early, it should not be one of the primary producers. These amendments provide for terms that shall be up to five years, which then provides the capacity to be able to manage that. For example, it could be managed in a way that the board is initially appointed for five years and, subsequent to that, someone could be reappointed for two, three or four years, someone could step down after five years, or it could be staggered before that. It is a much cleaner and more sensible way, on reflection and mature consideration, to deal with it. It is also much more robust in the long term.
Will there be three primary producers on the board at all times?
There will always have to be three. The legislation will require, with the amendment that we tabled, that at least three of the eight will have to be primary producers. That stipulation-----
Even with resignations-----
If only three of the eight are primary producers and a primary producer was to step down, that person would have to be replaced. Otherwise, the board would not be compliant with the Act because there would not be three primary producers any more.
I move amendment No. 20:
In page 16, line 32, after “appointment” to insert “, as the Minister shall determine”.
Amendment agreed to.
I move amendment No. 21:
In page 16, line 32, to delete “to (6)” and substitute “and (3)”.
Amendment agreed to.
I move amendment No. 22:
In page 17, to delete lines 1 to 8.
Amendment agreed to.
We have already discussed amendment No. 23, which is in the name of Deputies Carthy and Browne.
I move amendment No. 23:
In page 17, between lines 8 and 9, to insert the following:
“(7) a member of the board who is a primary producer will not be subject to a determination by lot should the representative who retired in the previous year also have been a primary producer.”.
Our amendment was based on the assumption that two board members would be primary producers and, if one was selected by lot on year one, another primary producer would not then be appointed in year two so the experience of the primary producer would be lost. Considering the Minister accepted that there will be three primary producers on the board, and the clarification and new wording, we withdraw amendment No. 23.
Amendment, by leave, withdrawn.
Section 23, as amended, agreed to.
Sections 24 to 27, inclusive, agreed to.
SECTION 28
I move amendment No. 24:
In page 19, line 21, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 28, as amended, agreed to.
Sections 29 to 32, inclusive, agreed to.
SECTION 33
Amendments Nos. 25 to 29, inclusive, are related and may be discussed together.
I move amendment No. 25:
In page 22, line 10, after “Minister” to insert “and the relevant Oireachtas Sectoral Committee”.
This amendment concerns a new concept, and one that is almost uniquely new to Ireland, namely, that when appointments of this nature are being made, there should be a ratification process within the relevant parliamentary sectoral committee. Essentially, it proposes that when a recommendation for an appointment as the chief executive of this new body comes, it is approved both by the Minister and the relevant Oireachtas sectoral committee, in this case, the Committee on Agriculture, Food and the Marine. The amendment seeks to provide that parliamentary oversight for an important role. I hope the Minister accepts it. As I said, this is something that is not done in Ireland, but my experience at a European level is that, in many countries, it is not unusual for appointments of this nature to require parliamentary approval by a sectoral committee.
Amendment No. 29 seeks to simply insert the following: "Prior to an appointment under section 33(1), a proposed candidate for Chief Executive shall attend the relevant Oireachtas Sectoral Committee to discuss his or her strategic priorities for the role.” This is a second gasp, if the first amendment requiring the relevant Oireachtas committee to give approval for the appointment is not accepted by the Minister, that, at a minimum, requires the proposed candidate to attend the Oireachtas committee to discuss his or her strategic policies and presumably take questions from members.
The amendments are fairly clear. It adds transparency if the relevant sectoral committee can see the person being appointed if he or she comes before it, as Deputy Carthy said, before the appointment is made. That is why I am anxious the Minister accepts these amendments.
I do not agree with what is outlined in amendments Nos. 25 and 29. It is not an appropriate space for an Oireachtas committee to be in to appoint or approve people's appointments to jobs. It does not happen anywhere else in Oireachtas systems. It often happens that chairs of boards, and the same will apply regarding the chair of the food regulator, appear before Oireachtas committee meetings. That will happen here as well.
There will be a public appointments procedure for the appointment of the CEO, who will be a member of staff, and which will be a full-time employee position. The position will be advertised and an interview process will be undertaken that is appropriate. It is not sensible, does not add up and would be unprecedented that an Oireachtas committee, along with the Minister, would appoint that person, subject to him or her having gone through a rigorous selection, interview and candidate selection process. I cannot agree to either of the two amendments for that reason.
I know that this legislation is something that the Oireachtas committee has given comprehensive consideration to. It carried out considerable consultation with stakeholders across the board in putting its own report together, and it has put 20 recommendations to me, 18 of which I have either fully or substantially agreed to. This is not something that the Deputies had proposed or put forward for consideration by fellow committee members for inclusion in that report. I do not believe it is something which, if considered in detail at committee level, would be deemed appropriate either. In relation to the appointment, as is sensible and good for the strategic direction of an office, there will be a full opportunity for the committee to meet with the chairperson. It is not appropriate at all, in my view, for that to be applied to the CEO and indeed, it is unprecedented as well.
I have made the case. Just because something has not happened in the past is never a strong enough argument, in my view, as to why it should not happen in the future. As I have said, while it does not happen within the Irish system, there are several examples of the practice internationally. I have cited the European Parliament as an example. Many senior European roles that have the exact same appointment process, but they need to be approved by the relevant committee. It is something that Irish Governments have traditionally been hostile to, because these things have been seen to be the preserve of the Minister. This does not diminish the role of the Minister in that the Minister will still have to approve the appointment, but it will also require that the Oireachtas committee has a role in terms of the accountability of that individual. I think there are countless areas in Irish public life where it would have proven very useful indeed if CEOs of State bodies had actually felt that they were accountable to the relevant sectoral committees. In this case, I think it is a good opportunity for this committee to have a very good and constructive working relationship with the incoming CEO.
Assuming the Minister's position, we put forward two different amendments, one of which takes the strong position that this committee would have power to ratify the appointment. In the absence of that, the second amendment seeks to provide that prior to an appointment being made, a proposed candidate will at least attend the Oireachtas committee to discuss his or her strategic priorities for the role. I would hope that if the Minister is refusing to accept amendment No. 25, at least he would accept amendment No. 29, which provides for that. In terms of the CEO role, there is a Dáil Standing Order in respect of the chairperson. I think it would be equally appropriate that that would be the case for CEOs as well, who we know, in reality, are the most powerful individuals in many of these bodies. Certainly, that is our experience of CEOs of many of the bodies that appear before this committee.
I cannot accept either amendment. I just do not believe it is appropriate, the right way to go here or, indeed, coherent with the rest of the Bill. In relation to amendment No. 29, as I explained in the Dáil on Second Stage, the reason I am not accepting the amendment is that the board of the regulator is, under the legislation, responsible for the strategic direction of the office, and not the CEO. We have discussed the fact that the board is responsible and that at least three of the eight members will be representatives of primary producers. They are responsible for the strategic direction of the regulator, not the CEO. The CEO will report to the board and will operate under the board's direction. The Bill provides for the CEO to appear before Oireachtas committee as required, once appointed to the role. It would not be appropriate for a CEO-designate to appear before the committee before taking up the role. It is and will be appropriate for the chairperson-designate to appear before the committee because it is the chairperson and the board who are responsible for the strategic direction of the regulator and the CEO will report to them. It is absolutely right, and I would expect, that the committee will carry out that role and meet with the chairperson-designate in advance of his or her appointment to discuss the strategic direction of the regulator. It would not be appropriate for the CEO, who will reporting to the board and responsible to the board under this legislation, to do so.
Amendment put and declared lost.
I move amendment No. 26:
In page 22, line 28, to delete “renewable”.
The Bill, as presented initially, included the word "renewable" in relation to the contract of the CEO. With amendment No. 27, I propose to change that to "(which contract may be renewed)". It is more legally robust. Amendment No. 26 seeks to delete the reference to "renewable" when referring to a written contract, and amendment No. 27 seeks to add the phrase "(which contract may be renewed)". I think it is more sensible and a better approach.
Amendment agreed to.
I move amendment No. 27:
In page 22, line 29, after “contract” to insert “(which contract may be renewed)”.
Amendment agreed to.
I move amendment No. 28:
In page 22, line 33, after “Expenditure” to insert “, National Development Plan Delivery”.
Section 33, as amended, agreed to.
Amendment agreed to.
Sections 34 and 35 agreed to.
SECTION 36
I move amendment No. 29:
In page 24, between lines 15 and 16, to insert the following:
“(2) Prior to an appointment under section 33(1), a proposed candidate for Chief Executive shall attend the relevant Oireachtas Sectoral Committee to discuss his or her strategic priorities for the
role.”.
Amendment put and declared lost.
Section 36 agreed to.
SECTION 37
I move amendment No. 30:
In page 25, line 29, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
I move amendment No. 31:
In page 25, line 32, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
I move amendment No. 32:
In page 26, line 2, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 37, as amended, agreed to.
Sections 38 to 40, inclusive, agreed to.
SECTION 41
Amendments Nos. 33 to 35, inclusive, are related and will be discussed together.
I move amendment No. 33:
In page 28, line 25, after “chain” to insert the following:
“including any recommendations made to the Minister regarding its own functions, or proposed or requested powers or functions”.
Essentially, this seeks to bring the practice of the publication of the annual report of the new body in line with the practice of other bodies. Amendment No. 33 seeks to ensure that the annual report would include "any recommendations made to the Minister regarding its own functions, or proposed or requested powers or functions". I suppose the most infamous area where we would see that is in relation to SIPO. It is important that where the board considers that additional powers would be important for its work, the public and the Oireachtas are aware of that. Amendment No. 34 includes the line "shall be published as soon as is reasonable".
Amendment No. 35 seeks to delete "or separately" and is intended to be taken in conjunction with amendment No. 34.
On amendment No. 33, which provides that in the annual report the regulator may include "recommendations made to the Minister regarding its own functions, or proposed or requested powers or functions", I think this is fair. It is something it would have the capacity to do. I have no problem with specifying that. It is in the spirit and expectation of the Bill and I am happy to accept this amendment.
Turning to amendments Nos. 34 and 35, the legislation as it is now allows that in relation to the publication of reports, where there is a decision to publish, it is now provided that the regulator shall publish this as part of "an annual report or a complaints and investigations report, or separately." The Deputy is proposing to delete the words "or separately" and instead insert "shall be published as soon as is reasonable". The legal insight and advice I have is that this is unspecific. Regarding the definition of "reasonable", this is a very fluid term and imprecise for legislation. The way the legislation is set out now facilitates publication either in the annual report or as part of a complaints and investigations report or separate to that. The regulator has the capacity to undertake all these types of publication now separately, whereas inserting "as soon as reasonable" is very difficult text to define and be clear about what it means. I am happy to return to this matter on Report Stage and for the two of us to reflect on it. I understand the point the Deputy is making. I do not agree that the proposed amendment will actually make things any clearer, but I am happy to consider it further and return to on Report Stage, if the Deputy wishes.
To my mind, amendment No. 33 was and is the important amendment in this regard, which the Minister has accepted. I welcome this. We will withdraw amendments Nos. 34 and 35 on the basis of what the Minister has said.
Amendment agreed to.
Section 41, as amended, agreed to.
Section 42 agreed to.
Amendments Nos. 34 and 35 not moved.
Section 43 agreed to.
Section 44 agreed to.
SECTION 45
I move amendment No. 36:
In page 30, line 5, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 45, as amended, agreed to.
SECTION 46
I move amendment No. 37:
In page 30, line 9, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
I move amendment No. 38:
In page 30, line 15, after “Expenditure” to insert “, National Development Plan Delivery and Reform”.
Amendment agreed to.
Section 46, as amended, agreed to.
SECTION 47
I move amendment No. 39:
In page 30, line 32, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 47, as amended, agreed to.
SECTION 48
I move amendment No. 40:
In page 31, line 15, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 48, as amended, agreed to.
SECTION 49
I move amendment No. 41:
In page 31, line 24, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Second 49, as amended, agreed to.
Sections 50 to 65, inclusive, agreed to.
SECTION 66
Amendments Nos. 42 and 45 are related and will be discussed together.
I move amendment No. 42:
In page 43, to delete lines 28 to 31 and substitute the following:
“(ii) in the case of an undertaking that is not an individual, to a fine not exceeding the greater of €50,000,000, or 20 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction, or
(iii) in the case of an individual, to a fine not exceeding whichever of the following amounts is the greater, namely, €50,000,000, or 20 per cent of the turnover of the individual in the financial year ending in the 12 months prior to the conviction or to imprisonment for a term not exceeding 10 years or to both such fine (that is to say a fine not exceeding the greater of the foregoing monetary amounts) and such imprisonment.”.
We discussed this aspect in the committee earlier and, in fairness, the Minister accepted the recommendation to increase the level of fines. When we are dealing with the unfair trading practices, UTP, directive, two approaches could have been taken. One is that it could have operated, essentially, under the Competition and Consumer Protection Commission, CCPC. I think this was the Minister's previous suggestion in terms of an ombudsman's office. The second approach was that it could be a stand-alone body. I think the Minister has taken the right approach by putting in place a stand-alone body.
At the same time, however, there is now a distinction. The CCPC's powers to levy fines and penalties are much greater than that of the new body. The legislation that gave the CCPC those powers derived from what is called the ECN+ directive. That legislative provision takes the approach of outlining the penalty in separate clauses in relation to an individual or otherwise, while this legislation would seem, on my reading, to be limited to individuals. What we are trying to achieve, therefore, is co-ordination across the two bodies in terms of the powers of enforcement and penalties.
This is something I have considered. Equally, this committee engaged with all the stakeholders it met and put together its own report. One of the recommendations the committee made to me was that we should set the fines at €10 million and 10% of overall turnover. I accepted that fully as one of the recommendations from this committee. I believe it is proportionate and appropriate here and that we should stick with it. What I am urging is that we stick with what the committee itself recommended to me and which I fully accepted.
I accept and acknowledge that the committee had reached a consensus and brought forward a recommendation that was accepted by the Minister. I will not, therefore, press for a vote on this amendment. This is one area, though, where I ask the Minister and the Department to include a commitment to review it after some time. The truth with these levels of fines, where we are talking about €10 million or even €50 million, is that most of the findings of the regulator concerning companies, we imagine, will come nowhere near either figure. In some instances, we know there can be very large corporate forces for which sizeable penalties would be required to dissuade or prevent further recurrences in this context. As I said, I will not press this amendment in acknowledgement of the Minister having accepted the committee's own report, but I suggest and request that this aspect will be kept under review. I do not know how easy it is to amend these types of things, but if there is any review and amendment of this legislation, I ask that this be one of the areas that we examine for effectiveness.
It is something that will be kept under review over time. Regarding specific fines like this, we are saying they can be up to €10 million or 10% of a company's turnover. If we had a company, for example, with a turnover of €1 billion, then the fine could be up to €100 million in a specific instance. It is appropriate that such a high and punitive penalty would be defined in primary legislation. I did examine the potential for it to be possible that the Minister, by regulation or statutory instrument, could be empowered by this legislation to change this provision down the line, perhaps in ten, 15 or 20 years as things move on.
However, the problem is that a Minister would decide what the fines should be, including the fine a court could apply, without primary legislation. This is a significant matter and it can be amended by primary legislation. I took legal advice, according to which the Minister setting himself or herself up as judge by setting the maximum threshold would not be robust legally. There would need to be Oireachtas endorsement.
The amendment differentiates between the specific penalties for undertakings and individuals. This differentiation is not necessary. When interpreting legislation, a reference to a person includes a reference to a body corporate. This matter is provided for in section 18(c) of the Interpretation Act 2005. As such, the amendment would be inconsistent with the rest of the Bill because it does not acknowledge section 82, which, together with the definition of a "person" under the Interpretation Act, means that all penalties contained in sections 66 and 80 can be applied to individuals, companies and company members, officers, directors, etc. as the circumstances of a case warrant.
Amendment, by leave, withdrawn.
Section 66 agreed to.
SECTION 67
I move amendment No. 43:
In page 44, line 24, after “investigation,” to insert “such a period being at least 5 years,”.
This section reads:
The regulator may decide not to investigate a complaint (or to discontinue it) on the grounds that—
...
(c) the unfair trading practice occurred too long ago to justify investigation
Our amendment would stipulate that such a period would be at least five years, thereby providing clarification of what "too long ago" means. A minimum period could be helpful in directing the regulator.
I understand the Deputy’s point, but it is not the appropriate measure. We should facilitate and rely on the judgment of the regulator instead of specifying in a concrete way in legislation for situations that we cannot predict. Section 80(2)(b) provides that the Minister may, by regulation, make such provision for "the procedures for the making of complaints under this Act, including the format, timing, evidence, standing and other requirements for efficient and fair processing of complaints". I am satisfied that this is appropriate and allows the Minister to respond and learn as situations evolve.
There are two ways of looking at the matter. If we leave the matter to the regulator’s judgment, the regulator can decide what is appropriate for the circumstances. However, were we to accept a concrete date, as proposed in the amendment, it would mean that an investigation of something that happened more than five years previously would be prohibited. It is more appropriate to leave it to the regulator to decide. The Bill also allows for the Minister to adjust regulations, as appropriate.
We cannot agree with the Minister. The term “too long ago to justify investigation” is vague. That is why we are putting some figure on it. That figure need not be five years, but leaving the provision the way it is would be too vague and far too open to interpretation.
We will only know whether such a concern is valid when the body is up and running, but we are constantly dealing with regulatory bodies that seem to have an aversion to regulating and will often look for any excuse to avoid pursuing matters. For example, we have seen that with the Competition and Consumer Protection Commission, CCPC, where agrifood is concerned. The number of reasons a regulator may decide not to investigate a complaint are stipulated in other subsections. This one reads: “the unfair trading practice occurred too long ago”. However, it should be at least five years before this reason is used. This would not mean that a matter would definitely be too long ago after five years either. The term “at least” makes that clear.
The amendment is helpful to the Bill and would ensure this matter is provided for. If the Minister says that the secondary legislation he is empowered to deliver will do the same thing, that is fine. I do not know whether he plans to publish those measures before Report Stage.
My fear is that, if we set a period of five years and the regulator wanted to nail something from earlier than that, we could be in danger of not tackling a full case or of letting something go. Would the Minister be open to applying a timeline if the regulator wrote to him about cases being X amount of years?
Yes. That is fair.
I take Deputy Carthy’s point. The Bill provides the Minister the ability to do what he suggested by regulation. Section 80(2)(b) allows the Minister to make such provision, by regulation, for "the procedures for the making of complaints under this Act, including the format, timing, evidence, standing and other requirements for efficient and fair processing of complaints". As lessons are learned, the Minister will, by way of statutory instrument, have that capacity without needing to do it through primary legislation.
I accepted this committee’s recommendation to increase the period for bringing a summary offence under section 81 to three years of the date from which the offence is alleged to have been committed. As such, the amendment would mean that the regulator was obliged to pursue an investigation after the period for bringing a summary prosecution. That is possible, of course.
The key point is that the Bill provides that regulations can be made to provide for detailed measures like this one. That would be a more appropriate way of doing it as opposed to specifying it in legislation.
Amendment, by leave, withdrawn.
Section 67 agreed to.
SECTION 68
I move amendment No. 44:
In page 44, line 31, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 68, as amended, agreed to.
Sections 69 to 79, inclusive, agreed to.
SECTION 80
Amendment No. 45 not moved.
Amendments Nos. 46 and 47 are related and will be discussed together by agreement.
I move amendment No. 46:
In page 54, between lines 14 and 15, to insert the following:
“(6) In this section, “Act of 1972” means the European Communities Act 1972.”.
Amendment No. 46 makes an editorial change, inserting "Act of 1972" in referencing the European Communities Act 1972. Amendment No. 47 deletes lines 15 and 16 as a result of the editorial correction we need to make.
Amendment agreed to.
I move amendment No. 47:
In page 54, to delete lines 15 and 16.
Amendment agreed to.
Section 80, as amended, agreed to.
Sections 81 to 86, inclusive, agreed to.
Title agreed to.
I thank the members for their detailed Committee Stage assessment. I also thank them for the significant work they all put into the prelegislative scrutiny hearings the committee held with stakeholders and for the report the committee sent to me. I worked hard to accommodate that report and I fully or substantially accepted 18 of the 20 recommendations. I thank members for the time and effort they put into tabling amendments to the Bill on Committee Stage. I also thank committee members and the secretariat for working to deal with Committee Stage in a timely fashion.
I look forward to Report Stage and the passage of the Bill through the Houses and getting the office up and running as quickly as possible. The office will be a significant step forward in our agrifood chain. It will bring price transparency and transparency along the supply chain. In particular it will address a challenge for primary producers by ensuring there is clear transparency in the system. We will have an independent statutory office operating to oversee this. I thank Ms Sinead McPhillips, Ms Angela Robinson, Mr. Noel Collins and Mr. Ray Sheehy from the Department. Mr. Collins and Mr. Sheehy have been managing the unfair trading practices office. I recognise the work of all of the team there.
Bill reported with amendments.
