Before Private Members' Business I said that the Minister had it in his power to put an end to unfair competition from the ESB. This is the only way we can hope to save family businesses. This semi-State company funded by the State is in competition with small family businesses around the country. The Minister must act on this appalling situation immediately. I ask him to take the initiative and have this unfair trading stopped immediately.
Competition Bill, 1991: Committee Stage (Resumed).
Question again proposed: "That section 5, as amended, stand part of the Bill."
I join with what the previous speaker said on this matter and I hope the Minister will give every consideration to meeting the recommendations of the national campaign for a fair deal in electrical retailing. In counties Laois and Offaly alone there are 500 families employed in the electrical retail business. This represents just a small fraction of those engaged in this business throughout the country.
I hope the Minister will see his way towards giving these people some hope. It is a business that has suffered over a number of years, not only because of the ESB's move into the area of retailing but also because of the multinational type megastores which have moved into this market. The retailers have no objection to competing on the same pitch as the megastores, but it is fair to say that the objections which have been levelled against the ESB have a certain degree of substance. The matter was the subject of a report by the Director of Consumer Affairs and Fair Trade in May 1990 and I hope the Minister will examine in detail the points made in that report. While the director did not reach a conclusion that there was malpractice or unfair trading, he felt there were some points worthy of consideration. He said it was a matter of public policy rather than something on which he could make a recommendation to the Minister.
There is no doubt that there is excessive market dominance by the ESB. The switch to this dominant position was marked by a decision made about 18 months ago when the ESB moved into the retailing of brown goods such as radios, televisions and videos, rather than concentrate on the white goods such as refrigerators and freezers for which they had become most notorious for decades.
There is a difficulty in regard to cross-subsidisation. The fact that the ESB enjoy a monopoly in their enterprise represents the element of unfair competition. The easy selling, the painless extraction of a few pounds by way of instalments every two months in the ESB bill, represents an unfair practice. It is also interesting that the ESB can exercise a type of credit control which is not open to any other group in society. A person who does not pay for his video or record player can actually lose his electricity supply. If the family electrical shop is not paid, the owner must resort to the courts or to a debt enforcement agency to collect what is due.
The ESB have a cosy arrangement where it is possible for a person to be forced to pay for a video or a refrigerator because of the sanction of losing electric light. There is scope for the Minister to investigate the injustice in the context of overall policy towards the ESB, particularly in regard to the future of their monopoly in the supply of electricity.
It would be a pity if many family businesses in our towns and cities were to be wiped out overnight by a company which has a State monopoly in the supply of electricity. The extent of competition that has been introduced is revealed by the fact that the ESB took a full page advertisement in last Sunday's newspapers. It is not possible for any family engaged in the electrical business to compete on that sort of pitch. I wonder where the payment for that advertisement came from. Was it paid for from the proceeds of the sale of electricity or of white or brown goods? It is important that there should be a clear demarcation between the retailing activities of the ESB and the sale of electricity. That will not be the case as long as the current billing system is retained by the ESB. I would urge the Minister to look favourably on the campaign for a fair deal in electrical trading.
I did not anticipate getting involved in this debate but I have been provoked into it by the two speakers from Fine Gael. It is ironic that Fine Gael should be back to their old position of being anti-State, anti-public enterprise and commercial public bodies. They spent an hour and a half yesterday and again today entertaining post office workers here and shedding crocodile tears for the jobs in their area. I do not agree that the ESB should be curtailed in their commercial activities.
Neither do we. The Deputy has not been listening.
It is a commercial State enterprise which is creating wonderful opportunities and providing good employment.
This is about competition practice.
I would ask Deputies to refrain from interrupting.
The ESB have served remarkably well working class families in the city and throughout the country in enabling them to purchase on an easy payments basis goods which they would not otherwise be in a position to buy. This practice enabled refrigerators and washing machines to become the norm.
The ESB cut them off if they do not pay.
(Interruptions.)
Acting Chairman
The Bill is in Committee and Deputies will have an opportunity to speak. I would ask them to refrain from further interruptions.
I suggest that the House should recognise the tremendous benefits for working class families which have accrued from the provision of this easy payment system provided by the ESB. I do not accept the Fine Gael argument that because the ESB is a big semi-State company it owes some favours to the small man.
That is not our argument.
Deputy Byrne was not here for the full debate.
I do not go along with the line about the little man whose family have been operating for centuries on the village green and who is now being threatened by the big bad ESB. If the ESB are in a position to offer their customers a range of services, they should be encouraged to offer as many services as the consumers wish. That is a logical position for the ESB.
Aer Lingus have recognised that there are ancillary areas connected with their business and they have established subsidiary companies to develop these areas. Every job created by Aer Lingus is welcome.
Aer Lingus do not enjoy a monopoly.
I want to record my opposition to the view that the ESB should be curtailed in the selling of white and brown goods. Deputy Flanagan pointed out that a consumer's electricity supply can be cut off for inability to pay the total bill because they have purchased certain electrical items. If that is the case; it is wrong. The correct policy should be that the ESB charge for the consumption of electricity very clearly as against the charge for the white or brown goods that might have been purchased, so in the event of running behind in payments, as long as payments for electricity consumption are made, then the ESB can pursue the consumer for the cost of goods but not interfere with his electricity supply.
The consumer must be protected against excessive interest charges. I am not sure whether that argument has been levelled against the ESB, but the consumer is entitled to avail of a service that is on offer without facing that worry. What is wrong with private enterprise that, according to Fine Gael spokespersons, they seem incapable of competing in the sale of white and brown goods to the consumer?
They are not a monopoly. They are not supported by the State.
What is wrong with a major electrical supply company, selling refrigerators, freezers and other electrical goods, arranging for an easy payments system to the consumer, who could equally opt to take purchase of goods from a private shop? What is wrong with private enterprise that they seem incapable of competing in providing this type of service on an easy payments system that seems attractive to so many electricity consumers?
Sir——
Acting Chairman
Is the Minister——
I found it very hard to get in on the last amendment and I am finding it equally hard on the section. With your permission, Sir, I will offer a few thoughts before I get squelched altogether.
This point comes up very properly and relevantly because it is an example of what in section 5 is regarded as a dominant position, and the question arises whether there is an abuse of the dominant position. I formed a view some couple of years ago when this matter was brought to my attention first and I referred it to the Director of Consumer Affairs, who investigated it and he came up with a conclusion that surprised me a little, but in essence he said it was a matter for public policy whether the ESB should be involved in the retailing of goods. I have discussed this matter again recently with the Minister for Energy who is responsible for the ESB and he shares many of my concerns in regard to it. Together we will look at what might happen. It strikes me as very unbalanced competition, to say the least, when one retailer has two extraordinary advantages that no other retailer has. One is that he can cut off your most needed commodity, from your family's point of view, if you fall into any arrears on the goods you are buying. Secondly, he has access to unlimited amounts of money for credit where retailers, so sneered at and derided by Deputy Byrne, cannot borrow these small sums of money for the benefit of their customers because a bank will not lend now to a borrower if the sum is less than £1,000.
Since nearly all these goods cost much less than £1,000 and even a combination of them would cost less than £1,000, private retailers are effectively forced out of the market as far as credit is concerned, and therefore, are able to sell only to people who can afford to pay cash in full on the spot. It seems that is not praticularly equitable and might well be looked at again. It can and will be looked at from the policy point of view. It can also be looked at under this section. If that proves necessary it is clearly a case envisaged by the section of a dominant position and one would, therefore, have to look at the question of whether there was an abuse. I do not think it necessary to say anymore on it now except that, no matter what definitions of the State or substantial parts of the State, that exercised our minds earlier, apply, clearly they would apply here. There is no doubt about that because the ESB operate in every part of the State.
I am pleased at the Minister's response and expression of thoughts in this regard. I commend him first for referring this matter to the Director of Consumer Affairs quite some time ago. I was one of a number of Deputies who placed questions to the Minister on this and I was happy that he referred it to the director. I am now happy to hear him say he will look at the question of public policy entailed in this.
Deputy Byrne has missed the point completely. It should be borne in mind that when a quarter of a million people are out of work and at a time of economic depression in many homes, anything that might brighten up the lives of ordinary people is very attractive. The advertisements published by the ESB and in all their office windows are to the effect that one can have at one's disposal new electrical goods with new technology at no immediate cost but put on the long finger. Using the monopoly system and the unique ESB billing system, that is obviously to the detriment of a great number of small electrical retailers. The Minister has rightly pointed out those two fundamental aspects. I hope he will make a decision reasonably soon in this matter of public policy because it is of concern to those unable to borrow in the same area as the ESB whose monopoly is putting their hard won businesses into decline. I consider it is an abuse of the dominant position and I trust the Minister will deal with it accordingly.
Acting Chairman
Deputies, I should mention that we have dwelt on this matter for some time especially where the ESB are concerned. We have a large number of amendments to dispose of and I suggest that Deputies be as brief as possible so that we can move on to other amendments.
The Minister gave us a scenario of the ESB being in a position to provide credit on favourable termsvis-à-vis traders who, because the banks will not lend less than £1,000, find themselves at a disadvantage. I suggest the Minister might consult with his appropriate colleagues in Cabinet in an effort to ensure and if necessary bring in legislation to ensure, that the banks and other lending agencies organise their lending arrangements to meet the needs of the people and of the consumer to a reasonable extent, and not concentrate all the time on making the enormous profits they build up year upon year. They should realise they have a responsibility out there at large as well. Some of their practices and also some of their interest rates are a disgrace. Many of them do not comply even with the legislation which obliges them to make clear what their real rate of interest is and they carry a major share of the responsibility here. Let us not forget about their role and put the entire blame on the ESB. I accept that the ESB are fully entitled to trade and compete in electricity and related items, but fair competition is required and if credit is a key factor, then the banks, the hire purchase companies and lending agencies have a role to play. It is time there was some major tightening up in the legislation dealing with them because, quite frankly, they put the boot in. Are the ESB the only people who put the boot in? If you fall foul of one of the banks, hire purchase companies or lending agencies they will put the boot in very soundly. They should not be allowed to pick and choose where they lend. They should have some base, but they are not allowed to say they will lend £1,000 and upwards. The conditions under which they get their licences ought to lay down what they are permitted to do and those conditions should be pitched to the needs of the people as well as to their principal god of making ever bigger profits.
Acting Chairman
I am calling Mr. Byrne.
Excuse me, I have offered three times. Deputy Byrne has only just offered. You are not being fair. I will give way to Deputy Byrne.
I will be very brief.
Acting Chairman
Sorry, Deputy Barry, but I was not aware you had offered.
I will be brief. I want to challenge the Minister's understanding of the abuse of the dominant position by the ESB in the sale of white and brown goods. The last place anybody with cash in their pocket, would go to buy an electrical item, are the ESB shops because they are extremely expensive. If you have cash in your pocket you would go to the private shop. It is not a fact that they are in a dominant positionvis-à-vis other electrical stores. I would argue most strongly for the retention of the rights of the ESB to sell these same items to those who are unfortunate enough not to have access to sufficient funds to purchase the goods in one clean swoop and who need to pay by instalments. Traditionally the ESB have served this market and they have done an excellent job. They have assisted many a household to upgrade the quality of their electrical goods. I would like to see this service retained.
I want to refer to what Deputy Byrne has said. This Bill has been debated here for 13 hours on Second and Committee Stages. The only appearance, as far as I can remember, that Deputy Byrne made was when he came in here 20 minutes ago.
That is true.
He gets the wrong end of the stick and a kneejerk reaction propounding the view that went out with the fall of the Berlin Wall. The Workers' Party should realise that that kind of thinking is as out of date now as an ark. Nobody in Europe, not even his friends in Eastern Europe, is proposing that the State control everything. No country in Europe proposes that the State should have its finger in every pie. The Deputy should not misrepresent us, especially when he does not know what he is talking about, not having listened to the debate. Nobody said the ESB should be prohibited from selling these goods. What we said is — and let me repeat it — that they should not have more favourable circumstances for selling than ordinary retailers.
I do not agree with Deputy Flanagan when he said that retailers whose families have been in the trade for generations should be protected. Nobody should be protected just because their families have been in the trade for generations. If you came into the trade yesterday, you should get the same fair trading conditions as the ESB or anybody else. You have no right to a living unless you are competitive and efficient. What is happening is — and Deputy Byrne chooses not to listen or does not know or chooses to ignore — that the ESB have a dominant position in this market because they are using their monopoly in electricity generation, dividing the overheads between their retail sales pitches and electricity generation, and then billing the customer and cutting him off from both services if they default on one. That is wrong.
They are more expensive for cash customers.
I am about to come to that. Deputy Byrne says that nobody with cash in their pocket would go into the ESB to buy an appliance. Of course they would not, and the ESB do not want to sell for cash. They want to put it on the bill and get interest on the money because they have an unlimited supply of credit from the State and do not have to pay for their credit like an ordinary retailer. That is the reason they do not want to sell for cash. They want to sell for credit. We are not talking about the relatively small number of people who buy one of these products for cash. I understand that most of these goods are bought on some from of credit. The ESB have a dominant position under law in the generation of electricity and they are using that dominant position, as far as we can judge — and I am glad to hear the Minister say that he and the Minister for Energy are looking into this matter — to subsidise the credit given in their retail sales division, an area where they need not have a dominant position because they should be in fair competition with all the other traders selling similar goods. That is all anybody on this side of the House is seeking. We are not asking for special treatment for traders, we are asking for fair treatment for traders.
Acting Chairman
I seek your co-operation to move on to as many amendments as possible. Is section 5, as amended, agreed to?
I was going to oppose it but given the undertaking the Minister has given about the ESB I have decided otherwise. I expect him to live up to that promise.
The lights have come on all of a sudden.
It is a gesture of goodwill to encourage the Minister on his way.
Question put and agreed to.
NEW SECTION.
I move amendment No. 36:
In page 6, before section 6, to insert the following new section:
"6.—(1) The Authority shall submit proposals to the Minister on unfair practices or unfair methods of competition in respect of particular sectors or activities where the issues arising cannot or cannot adequately be encompassed by section 4 (1) and 5 (1) of this Act.
(2) The Minister having considered the proposals of the Authority and the report on which they are based may, if the interests of the common good so warrant, make an order to do all or any of the following—
(a) to prohibit unfair practices or unfair methods of competition,
(b) make such provision in regard to unfair practices or unfair methods of competition as to promote competition.".
This amendment seeks to insert a new section after section 5. The purpose of this amendment is to allow the Authority to investigate unfair practices and unfair methods of competition in regard to trading, to report them to the Minister and to put the onus on the Minister to prohibit unfair practices or unfair methods of competition. We accept, and I think the Minister by his response to the ESB debate has shown that he accepts, there are areas where there is unfair competition and unfair trading which is not in the long term interests of the consumer and can be damaging to employment. The purpose of this amendment is to allow the Authority to investigate these areas and to submit proposals to the Minister which would allow him to introduce legislation as necessary or to make such orders as are necessary under whatever legislation is available to him to prohibit and to stop that unfair trading.
The general approach adopted in this legislation is to move away from the sector by sector or trade by trade approach of the old restrictive practices legislation. It seems to me that this amendment — this new section if it were to be inserted — would bring us back to the 1972 Act and, indeed, to the earlier Acts. Subsection (2) of the amendment states:
The Minister having considered the proposals of the Authority and the report on which they are based may, ...make an order to do all or any of the following—
That is exactly what his powers are at present and he can only make an order in respect of each specified trade and he may have to change it after a few years as the circumstances within that trade and the trading competitive practices change. We have now broad general rules to prevent anti-competitive practices and to prevent the abuse of dominant positions. The making of orders in particular cases would seem, therefore, not to be the appropriate approach. I think it is better to do it on a more general basis. A difficulty that could arise if this section were to be inserted with section 4 and 5 is that the courts could do one thing in relation to certain matters and, independently, the Minister could come along and do something different. We would then have a very unsatisfactory clash of jurisdiction in regard to these matters which would be a pity. This is something I would like to avoid.
Amendment, by leave, withdrawn.
SECTION 6.
Acting Chairman
We now proceed to amendment No. 36a. Amendment No. 37 is related. I suggest, therefore, that we discuss amendments Nos. 36a and 37 together. Is that agreed? Agreed.
I move amendment No. 36a:
In page 6, subsection (1), line 4, before "Any person", to insert the following:
"Any association whether incorporated or unincorporated which has as one of its interests or objects the review or control of anti-competitive activities and whose members include persons aggrieved, or".
The purpose of this amendment is to allow grouping or associations of people who are adversely affected by anti-competitive practices to join together in an association with the aim of bringing court proceedings to protect themselves. As the section stands it seems that only an individual person or company who is aggrieved or affected by an anti-competitive practice will be able to bring court proceedings. No provision is made for a group of consumers to get together to form an association and thereby give themselves some hope of being able to mount the legal action in the High Court which the Minister requires them to take, being the only avenue he leaves open to them, for the purpose of securing protection for themselves.
If, for example, there was an abuse of petrol pricing and the price of a gallon of petrol was increased by an unwarranted amount, price control having been lifted rather recklessly, because of that anti-competitive practice and for the sake of 5p on a gallon of petrol, no person on his own is going to put £10,000 or £20,000 up front for the legal costs of a High Court action under section 6. The abuse will continue because under the Bill there is no likelihood of somebody else going to court in place of that citizen. The only other person, apart from a citizen, who would have that power would be the Minister. As I said earlier, it is very unlikely in the extreme that the Minister will have resources in his Department to investigate the matter. I suspect that he would be rarely, if ever, willing to initiate proceedings under section 6.
It should be open to petrol consumers to band together and form a petrol users' association or some organisation of that kind. By each member making a modest contribution to that association they could gear themselves up to protect the rights of the consumer. There are already some consumer associations in existence which, with the benefit of my amendment if the House agrees to it, would be in a position to undertake proceedings, and would have the right to do so. My amendment provides that any association, whether incorporated or unincorporated, which has as one of its interests or objects the review or control of anti-competitive activities and whose members include persons aggrieved, shall be entitled to band together and go into court to secure relief for the consumer. Individual consumers and small companies on their own will not be in a position to initiate the High Court action required. However, if they can band together in a group or association it will be possible for them to do this.
Deputy Taylor has just explained the purpose of his amendment. If I were to accept his amendment this subsection would be extremely long and unwieldy and taken as a whole would be badly expressed. The intention of the existing wording of the section is to try to ensure that groups of people who have a grievance have the same rights as individuals. The term used in the section is "any person". This term is frequently used in legislation to cover the plural and should not be taken literally.
It would be unsatisfactory if a consumer group, for example, the Consumers' Association or an economic representative group such as the IFA who represent farmers or the ICMSA, were to be deprived of the right to initiate court proceedings and the sole onus for litigation was put on individuals. That would not be my intention. Even though I am advised that the present wording would cover such groups, I should like to make it a little more clear to put it beyond doubt. I propose to discuss this matter with the parliamentary draftsman between now and Report Stage to see if it can be made clearer.
I do not like the wording suggested by Deputy Taylor which is very unwieldy and difficult. I agree with what the Deputy is trying to achieve but I believe it could be put more neatly than he suggests. What is important is that we make it clear that an aggrieved person, as set out in this section, includes a group of people acting together. This is a reasonable objective and I shall try to clarify the matter between now and Report Stage.
I thank the Minister for his constructive reply. I appreciate his response. Obviously I am more concerned with the object of what I am trying to achieve than with the question of whether my wording or any revised wording is adopted. I should point out to the Minister that it is not just a question of the use of the word "person". If that was all that was involved, that would not necessarily be a problem.
I am concerned about the expression "any person who is aggrieved". For example, the consumers' association could be held not to be aggrieved. The word "aggrieved" could well be imported to mean that they sustained damage or loss or had a grievance which affected them while a group of associations, as an association would not, whereas it should be sufficient if some or many of their members within that association suffered a loss as a result of that anti-competitive practice. Subject to that, I am delighted with the Minister's response and appreciate it.
Amendment, by leave, withdrawn.
Amendment No. 37 not moved.
I move amendment No. 38:
In page 6, line 10, to delete subsection (2) and substitute the following:
"(2) An action under this section may be brought in the High Court, the Circuit Court or the District Court provided that in the case of proceedings brought in the Circuit Court or the District Court the same jurisdiction limits shall apply as are applicable in those courts from time to time in actions for breach of contract and provided further that relief by way of injunction or declaration provided for in subsection (3) shall not be granted in the District Court.".
This is a very important amendment. The Minister has provided in the Bill that the right of action that is conferred must be brought in the High Court. I find that strange and I do not understand it.
There is in this country a hierarchy of courts. There is the District Court which has jurisdiction up to £2,500, shortly to be doubled to £5,000, staffed by a very competent team of district justices who are well experienced, but of limited jurisdiction. There is the Circuit Court, a court of a higher standard which has jurisdiction at present up to £15,000, shortly, under the Bill just published, to be doubled to £30,000. In the next few weeks it will be possible to recover £30,000 worth of damages in the Circuit Court. It would only be necessary to go to the High Court if one was thinking in terms of recovering damages in excess of £30,000. The key element in the remedies available to a person affected by an anti-competitive practice would be an injunction or declaratory relief. The Circuit Court has jurisdication to grant injunctions and declaratory relief. Why, in an appropriate case falling within the jurisdiction of the Circuit Court, can the proceedings not be brought in the Circuit Court? Why, if a Circuit Court judge is competent to give a decree in a matter for £29,000, is he not competent to deal with a matter arising under the Competition Bill? It does not add up.
A small company could be affected in a modest way by an anti-competitive practice resulting in, say, loss of profits or damage of £1,000. That would be well within the jurisdiction of the District Court, not to mention the Circuit Court. Are we going to provide that that person should pay £20,000 or £50,000 in a high risk action in the High Court when all he has lost is £1,000 and all he seeks to recover is £1,000? That is what would happen if we provide that all these cases must go to the High Court.
The Minister made the point that the District Court does not have jurisdiction at present to grant injunctions, and I concede that. That is the reason I wrote into my amendment the fact that injunction relief should not be given through the District Court. If somebody needs an injunction in a modest case they could get it in the Circuit Court which would be much cheaper than going to the High Court. The jurisdictions of the courts are being expanded by the Minister's colleague, the Minister for Justice, and rightly so. That is a vote of confidence in the lower courts and it is well warranted. There is a fine team of justices in the District Court and judges in the Circuit Court. District justices, for the most part, have been solicitors and some have been junior counsel. Most of the judges appointed to the Circuit Court have been senior counsel although some might have been junior counsel. These people are well able to handle claims for damages of up to £30,000, in all kinds of actions such as libel, contract, tort and so on, but for some reason a claim for damages under the Competition Bill is so special that Circuit Court judges and district justices are disqualified from taking these cases.
If we are talking about recovering damages — that is what we are talking about — it is specifically provided for in the section. As I said, why should a person who has suffered damages to the extent of £500 have to pay thousands of pounds in costs by bringing his case to the High Court? I see no reason for that. The whole structure of this Bill is law-orientated, forcing ordinary citizens and ordinary companies into the courts rather than putting some measure of responsibility on to the Authority. That is compounded by providing that not alone must the company or the citizen go to court but they must go to the High Court irrespective of the amount they seek to recover in damages. Whether they are looking for £100,000 or £500 they would have to go to the High Court.
The whole basis of having a hierarchical court structure is that small claims are dealt with in the District Court, moderate size claims in the Circuit Court, and very substantial claims in the High Court. Some of the matters that will arise under this Bill will of course be very substantial and will warrant the case going to the High Court. By reason of jurisdictional constraints alone they will have to go to the High Court. There will be a few such cases, but of all the cases that will be brought under this Bill the overwhelming majority would be well within the jurisdiction of the Circuit Court and very many of them could well be within the expanded jurisdiction of the District Court. Why compel somebody to go to the High Court when they would be happy to have their case disposed of in the modest jurisdiction of the District Court or when the damages they seek do not exceed what comes within the jurisdiction of the Circuit Court? Maybe there is an explanation for this but I cannot imagine what it can be.
Deputy Taylor has made this case much more eloquently than I could. I cannot see the logic of having to bring these cases to the High Court, with all the costs involved. Perhaps when the Minister replies to Deputy Taylor's amendment he will explain this to us. I thought I had a very good case earlier today when I was thinking in terms of the cost of going to the High Court but having listened to Deputy Taylor talk about somebody having to put together £20,000 to take a case to the High Court it seems to make the argument for bringing the smaller cases to the Circuit Court or the District Court much more compelling. I strongly support this amendment. I have not heard the Minister justify the reason all these cases should be brought to the High Court rather than the Circuit Court or District Court but perhaps he will do so now. Pending that, I am persuaded by the logic of Deputy Taylor's argument and I support his amendment.
My anxiety always has been to try to have matters in dispute that have to be adjudicated on in courts decided in the lowest possible court. In the legal sense I believe in the principle of subsidiarity even though it is rather difficult to practice subsidiarity when it comes to the law because the force of gravity is upwards and onwards as far as courts are concerned. I thought therefore that an appropriate court for this type of action would be the Circuit Court. I have heard many complaints about how complex this Bill is, how new it is, with all the different concepts, new law and foreign law — by foreign law I mean non-Irish and non-English law, but continental law. It seems that in the early years at least, until the jurisprudence within Ireland on this sort of topic has developed, the appropriate place to have decisions made on disputes that will arise under this Bill is in the High Court. The High Court already has some experience, in some cases quite a bit of experience, of dealing with Articles 85 and 86 in so far as they relate to Community law. However, I do not think that in the longer term, when the jurisprudence has been established here and the workings of the Authority and their relationship with the courts have been established, that the High Court should retain exclusive jurisdiction. After a period of about three years, which I think would be an appropriate amount of time to enable the jurisprudence to develop, the Circuit Court could be given jurisdiction up to the limit of its civil jurisdiction, in other words, for cases of up to £30,000 and for injunctions relating to those cases. I do not recognise, either now or in the future, any argument for having any such cases heard in the District Court. The District Court would not be a suitable forum, and the principal relief, that of injunction, would not be available there anyway. It would not be worth pursuing separate claims for damages there, and I do not think that, either now or in the future the District Court should have jurisdiction.
The change after three years could be made by regulation by the Minister. I am not certain that the Minister's present regulation-making powers would cover that position fully. I will consider the matter between now and Report Stage in order to ensure that such power is available.
I am not sure that I would be too happy with the giving of a regulation-making power to make a change in the venue of court that would be appropriate to hear particular cases. That might be spreading power a little too wide.
The Minister says that the District Court would never be an appropriate court to have anything to do with the Competition Bill because it would not be possible to gain injunctive relief through the District Court. He is quite right, the District Court does not have power to grant injunctions. However, there could be many cases in which a person or small company does not want or need an injunction. For example there could be a case in which injury or damage was done to a company by an anti-competitive practice which resulted in a loss of £1,000 to that company. It could be that after complaint was made the anti-competitive practice ceased and all that was left for resolution was the company's loss of £1,000, which they wanted to recover. No question of an injunction would then arise. Why should that company not be able to bring their small claim of £1,000 to the District Court? Why should they have to be intimidated by the prospect of a case in the High Court or even the Circuit Court either then or three years on? It would be all right to send such a company to the Circuit Court if they were suffering continued losses as a result of the anti-competitive practice being ongoing and needing an injunction. It would be all right for the Circuit Court to be the appropriate forum then, even if the loss were only £1,000, if an injunction was needed: that would be fair enough, I accept that.
To say, as the Minister says, that in three years time the legislation will be changed to extend the jurisdiction of the Circuit Court — that is new — appears to imply that Circuit Court judges are not competent at present to deal with matters under this legislation. If one gets to the bottom of the issue that is clearly what it amounts to. Will Circuit Court judges be any more competent in three years time than they are now when they have not been dealing with any such cases in the meantime? I do not think so, but I take the view that Circuit Court judges are now perfectly competent to deal with any matter that might arise under the legislation. Indeed, in so far as small cases are concerned, District Justices would be well competent to determine whether there had been an abuse of a dominant position or whether an anti-competitive practice had been undertaken. They would have the aid of expert witnesses; witnesses who would, unfortunately have to be produced in any court to back up a case. Circuit Court judges would be well competent to do that now. They are experienced lawyers, most of them having been in practice for the major part of their lives. The judges have to have been in practice for ten or 12 years — I cannot remember the exact period — and most of them, if not all of them, are qualified senior counsel who have practised at the bar for many years.
The Bill does not pertain to Articles 85 and 86. I do not think that reference to Article 85 and 86 appears anywhere in the Bill. The legislation to be interpreted is this Bill as it goes before the courts in the form of an Act. Any lawyer worth his salt, solicitor or barrister, would be well capable of interpreting the legislation studying it and arguing it out before a court.
In my view, it is a travesty to compel small claimants who have a genuine claim and wish to have resort to justice under this law, as it will be, to go to the High Court. In the overwhelming bulk of cases the effect of that ruling would be to deprive an individual or a small company of their rights under the law. In most cases if people were given the choice of going to the High Court or going nowhere, then they would go nowhere.
The body of law that has arisen in Europe under Articles 85 and 86 would certainly be of interest in the interpretation of this legislation, but it would not necessarily be followed as absolutely binding. It is this legislation that the courts would consider in the determination of claims for damages or claims for injunctions.
I think the amendment has overwhelming merit and the Minister should reconsider it.
Both the Minister and Deputy Taylor know more about the judges and the hierarchy of the courts than I do, but it appears to me from what I do know that the competence and the background of both Circuit Court judges and High Court judges are broadly similar. They all seem to be extremely competent. They are well qualified and intellectually quite capable, both from experience and from their level of knowledge and training, to deal with anything that might crop up under this section of the Bill.
Being already persuaded of that in my mind, I am now even more persuaded because of the difference in cost between the Circuit Court and the High Court. There are potentially huge costs attached to the Bill. The type of cases referred to by Deputy Taylor would end up in the High Court anyway. They would be serious cases involving very big companies seeking to protect their position in the market. Those companies would be willing to pay the cost involved in going to the High Court. There will be smaller cases, particularly and unfortunately in the three years to which the Minister refers. The difficulties will arise in the first three years, when people will be in doubt and actions will be taken. A case might be taken against an authority that has tried to impose conditions on firms.
The people who have been influencing my thinking during the whole debate are small business people. It would be ludicrous to send a case involving £20,000 to a court where costs would amount to £20,000. I hope the Minister will accept what Deputy Taylor is saying and accept the amendment to deal with cases in the Circuit Court. I am not sure that Deputy Taylor has accepted the Minister's point about the District Court and I am not competent to give a judgment on that matter, but I hope the Minister will accept Deputy Taylor's point.
I do not know whether the Minister was offering the Circuit Court as a compromise position. I forgot to mention earlier that it is an axiom of going to law that when one sets out to enter the field of battle in the law courts one must think not only of the hearing in the court but of the possibility of ending up on appeal, either because one loses or because one wins and one's opponent appeals the case, in a higher court. That must be taken into account before one starts off down that road. It follows that if this Bill is left in its present form where one can only start in the High Court, an appeal ends up in the Supreme Court. One is getting into mindboggling figures when one talks about Supreme Court costs on top of High Court costs. There is also a delay factor. There is a waiting time of about two years to get a case before the Supreme Court. It takes long enough to bring a case to the High Court although now extra judges are being appointed to the High Court. There is only one Supreme Court, however, and there is a very long waiting list there.
What will happen if every simple little trifling case, well within the jurisdiction of even the District Court, can potentially end up in the Supreme Court? Who does that favour, the small person or the big multinational company? The big multinational company is the winner all along the line. A multinational can resist either the High Court or the Supreme Court. A small person looking for £1,000 damages from a multinational will not take them on in the High Court or the Supreme Court because of the costs. They might take them on in the District Court and perhaps in the Circuit Court although that could end up in the High Court. It would be grossly unfair to leave small people in that position. If the Minister has this slight concern that it would take Circuit Court judges three years to learn the ropes of this Bill — an unfair comment I would suggest——
I did not make the comment, Deputy, but the Deputy's miser-able style is always to attribute these sort of views and innuendos to other people who did not say any such thing. I am well used to listening to the Deputy and his snide remarks. That is one of the reasons, unfortunately, these debates are less pleasant than they otherwise might be.
The question of pleasantness or otherwise is not the point. We are trying to improve the legislation. If the Minister was more responsive one could try to make a contribution that would put something into the Bill, particularly when politics is not involved and all we are engaging in here is trying to put what knowledge or experience one has of these things forward for the benefit of the House. I have 40 years experience of dealing with these kinds of matters, so I know a little bit about them. I am quite convinced that the Circuit Court are well able to hear these cases, particularly when one takes into account that if the Circuit Court judge gets the decision wrong, as can happen, there is the safety measure that it can be appealed in the High Court, rather than having to end up in the Supreme Court. That is what I am trying to say and it is a fair and reasonable point.
A further point in support of what Deputy Taylor is saying is that the High Court sits only in Dublin permanently. It goes around the country as well, but it only sits in Dublin permanently. That is a constant cause for complaint in Cork and probably in other areas. If one has a High Court case one is told that it will take two and a half years before it can be brought before the High Court in Cork but that if one wants to go to the High Court in Dublin one may be able to get to the list in a year and a half. Of course if one does that one must bring all one's witnesses to Dublin and be subject to all the extra costs of doing so. I am appealing at the moment to another Minister to try to get a permanent High Court in Cork. I do not know in what other parts of the country the Circuit Court sits, but I imagine that Circuit Courts are dotted around the country and they could hear cases in different areas rather than bringing everybody to Dublin for the High Court. That is another argument in favour of dealing with this in the Circuit Court.
I did not make the remark about Circuit Court judges which Deputy Taylor in his inimitable style attributes to me. I have no reason to believe that they are not people of the highest competence but, as I have already pointed out, this is a very new field of law. It is not based on Irish or English law. It is based on European law. Deputy Taylor incorrectly makes the point that judges will be concerned only with this Bill. I have already made it abundantly clear that we will be concerned with all the judgments of the European Court over the past 35 years on Articles 85 and 86. Articles 85 and 86 will be referred to in all these cases as will all the judgments of the European Court of Justice as apply to this country by the statutory instrument of 29 December 1972. Not for the first time, Deputy Taylor is completely erroneous in what he suggests in regard to this matter. It is appropriate therefore that the basic jurisprudence in this country should be worked out in the High Court. I am conscious of the costs involved but I do not accept that they are anything like what Deputy Taylor describes. There is no question, in case people think it from reading what he said, that one must put up £20,000 cash to go to the High Court. There are thousands of cases in the High Court every year from people in all walks of life, including the very poorest people. I have no reason to believe that the same cannot apply here. It is more expensive, there is no doubt about it, but when the jurisprudence is developed it is appropriate that there should be a concurrent jurisdiction in the Circuit Court. I said that in my earlier intervention on this amendment and I would have thought that Deputy Taylor would be glad of my remarks. However, he adopts this harping attitude, unfortunately, which seems to be part and parcel of his approach to debates here. That is a pity because I have shown my openmindness in regard to this and I am prepared to make the advantages of this Bill as widely and as cheaply available as I can.
It is more expensive if you are not in Dublin.
It is but the kind of injuries Deputy Barry is talking about are personal injury actions which are much slower. This used to be called a non-jury case but I think they now call it a Chancery case and they are heard much quicker, there is nothing like the same delays for those which do not relate to personal injury accidents.
One will have to bring lawyers and accountants.
The lawyers are usually there anyway but a lot of this would be heard on affidavit. I look forward to the day when we have a permanent High Court judge in Cork, indeed perhaps more than one. It is a pity that we did not have them earlier.
The Government have an ideal opportunity, in appointing new High Court judges, to appoint one to Cork.
We would have to make that a condition of their employment before they are appointed.
I do not want to interrupt this ramble round rural Ireland but I should like to get back to the reason for the Minister's extraordinary tetchiness, which seems unreasonable in the context of Deputy Taylor's amendment. The efficacy of the Bill presumes that section 6 can be invoked when the necessity arises, that the aggrieved person, corporate or otherwise, can have resort to the court to vindicate their rights under this legislation. I would have thought that a very compelling case has been made that it may well be beyond the capacity of a great many small traders or suppliers to do that. On the one hand the Minister indicated to the House his amazement and bafflement that we are all making such a meal of this Bill and complaining we are getting inadequate time and on the other hand he tells us we are following 34 years of well established precedent in European courts. He said that there is nothing new here but he demonstrates a great lack of conviction in the system to quickly assimilate these decisions and apply them in the Irish situation.
I would have thought that the jurisdictional limits in the case of the District Court and the Circuit Court automatically place a limit on the cases that might be tried there and would avoid the prospect which Deputy Taylor, quite reasonably, holds out. Deputy Taylor's amendment specifically excludes relief by way of injunctions, as provided in the relevant subsection, being granted in the District Court. I cannot recall if the Minister accepted a single amendment since we started; if he did it was of very minor import. Admittedly, he tabled some amendments which had obviously been informed by the debate on Second Stage and representations made to him. If the Minister is saying that Deputies on this side of the House are deliberately dragging this out or that we are not raising real fears, I predict that, as soon as this Bill is enacted, there will be an outcry about an action under section 6 having to be brought to the High Court in the first instance. That is inevitable. What is the point of the Bill, by which the Minister sets so much store, if one's rights cannot be vindicated in a fashion within one's financial grasp?
The amendment is an eminently reasonable one and I cannot understand why the Minister is so opposed to it. I also cannot understand why he is to tetchy in regard to the arguments advanced in support of it.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 64; Níl, 43.
Tá
- Ahern, Dermot.
- Ahern, Michael.
- Barrett, Michael.
- Brady, Gerard.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Callely, Ivor.
- Clohessy, Peadar.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Fahey, Frank.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flynn, Pádraig.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West)
- O'Connell, John.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Treacy, Noel.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barry, Peter.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Byrne, Eric.
- Connaughton, Paul.
- Cotter, Bill.
- Currie, Austin.
- Deenihan, Jimmy.
- Enright, Thomas W.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Charles.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kemmy, Jim.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGinley, Dinny.
- McGrath, Paul.
- Mitchell, Gay.
- Noonan, Michael.
- (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Sullivan, Toddy.
- Rabbitte, Pat.
- Spring, Dick.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
Tellers: Tá, Deputies Geoghegan-Quinn and Clohessy; Níl, Deputies Howlin and Ferris.
Question declared carried.
Amendment declared lost.
I am now required to put the following question in accordance with the order of the Dáil of today: "That the amendments set down by the Minister for Industry and Commerce and not disposed of are hereby made to the Bill; in respect of each of the sections undisposed of that the section or, as appropriate, the section as amended, is hereby agreed to; that the Schedule as amended and the Title are hereby agreed to and that the Bill as amended, is hereby reported to the House."
I am calling a vote on this question because I object strongly to the way this Bill has been taken.
The Dáil divided: Tá 65; Níl, 45.
Tá
- Ahern, Dermot.
- Ahern, Michael.
- Barrett, Michael.
- Brady, Gerard.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Callely, Ivor.
- Clohessy, Peadar.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molly, Robert.
- Morley, P. J.
- Nolan, M. J.
- Noonan, Michael J.
- (Limerick West).
- Daly, Brendan.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Fahey, Frank.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Hillery, Brian.
- Hilliard, Colm.
- O'Connell, John.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Byrne, Eric.
- Connaughton, Paul.
- Cotter, Bill.
- Currie, Austin.
- Deenihan, Jimmy.
- Enright, Thomas W.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Charles.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kemmy, Jim.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGinley, Dinny.
- McGrath, Paul.
- Mitchell, Gay.
- Noonan, Michael.
- (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Sullivan, Toddy.
- Rabbitte, Pat.
- Spring, Dick.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies Gallagher and Clohessy; Níl, Deputies Flanagan and Boylan.
Question declared carried.
When is it proposed to take Report Stage?
On Wednesday of next week, subject to the agreement of the Whips.
Report Stage ordered for Wednesday, 19 June 1991.