In view of the decision of the House earlier that all Stages of the Bill should be completed today within two-and-three-quarter hours, I do not think we will be able to give Committee Stage the thorough examination I would like, since I have eight amendments down. I understand that there is a willingness to divide the time between various Parts of the Bill. I understand it is proposed to divide the time available by seven. If that is accepted by the Minister, I hope to at least get clarification on certain points.
Competition Bill, 1991: Committee and Final Stages.
I agree to this or any arrangements the House wishes to make, notwithstanding the remarks I understand the absent Senator Manning made about me this morning. I did not choose the time for this, and I am quite amenable to whatever arrangements the House want to make. Senator Manning did not bother attending in this House for even one minute of the debate on this Bill last week, and I notice he is not here again today. It is indicative of the crocodile tears he sheds about these matters, which are purely hypocritical and are asked simply for the optics.
I was aware that the Minister agrees to such an arrangement.
That will mean approximately 20 minutes per Part of the Bill. Is that agreed? Agreed.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
Section 4 gets to the substance of the Bill. It deals with the rules of competition and states that all agreements between undertakings, decisions by associations of undertakings and concerted practices, and so on. As I explained to the House on Second Stage, there is widespread concern amongst the business community that when the Bill becomes law, to ensure that one is not at risk under any of the interpretations, one will eventually need either a licence from the Authority or a certificate of exemption. I would like the Minister to clarify the situation. Perhaps the fears I have expressed, which are held by some trade associations and by many in the business community, are unfounded. Nonetheless, they exist and, perhaps, it would be as well to dispose of them at this point.
I assure the Senator that it is not necessary in order to be safe to have either a licence or a certificate of exemption. Section 4 prohibits and makes void anti-competitive agreements, decisions and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State.
If a business does not engage in agreements, decisions or concerted practices which are anti-competitive, it does not need a licence or an exemption. The vast majority of companies and traders do not engage in such practices and therefore, the question of licensing or exempting them does not arise.
The assumption is made by some people that every business is engaged in some form of improper practice. That is not the case and the vast majority of them are not so engaged. It is only those who are so engaged who would have to apply for a licence or an exemption. If they could show that the public interest was served by allowing them to retain either in whole or in part some arrangement of the kind they had entered into, and if they could so convince the Competition Authority, the Competition Authority could licence them to continue. On the other hand, if the Authority were of the view that the public interest was not served by what they were doing, they would not licence them and it would become illegal. The vast majority of firms are not engaged in any such activities or practices. Therefore, the question of having to have a licence or certificate of exemption in order to be safe does not arise. The best way of being safe is to ensure that one does not engage in any anti-competitive practices. One is as safe as a house then.
I accept that the Minister has gone a long way to clarify this.
It will be of considerable relief to many firms to read what the Minister has said this morning. I want the Minister to clarify the position as best he can at retail level. As the Minister may be aware, I am engaged in the licensed trade which is very often criticised at retail level for being engaged in price fixing, concerted practices and so on. Under a later section an aggrieved person will be able to take up certain matters with the court or the Authority. On Second Stage I raised the issue of defining what is a concerted practice. The Minister answered me by saying that perhaps it was better not to define things too clearly in legislation at this stage. Will there be an obligation on the licensed trade, those who own corner shops, hairdressers and so on, to apply for a licence or certificate or will they be safe without them?
If traders at retail level are competing with one another in the ordinary way, there will be no obligation on them to apply for anything but if they enter into any form of concerted practice then they will have to consider whether or not that concerted practice is justifiable. If they believe they can prove to the Competition Authority that it is in the overall public interest that it be retained, they can apply for an exemption. However, not many traders at retail level would enter into such concerted practices. It is suggested from time to time that licensed traders in certain areas tend to do the same thing on the same day at the same time to the same amount. It will be a matter for them to read the Act carefully and consider whether or not the practice is a concerted practice. If it is, then obviously they will have to tread warily. The best thing for those concerned would be not to make these arrangements whereby prices go up by the same amount on the same day in the same place in every establishment. They should compete with one another and fix their own prices so that there is a variety of prices in a particular locality and the public can benefit from that. That would be the most advantageous thing to do.
I am satisfied with the Minister's reply.
Question put and agreed to.
Section 5 agreed to.
SECTION 6.
I move amendment No. 1:
In page 6, subsection (1), line 23, to delete "is aggrieved" and substitute "suffers loss".
I referred to this point on Second Stage. On Committee Stage we should look at what is meant by the term "aggrieved person". This description should be firmed up considerably as the word "aggrieved" is far too wide, is open to abuse and cranks, if I may call them that, who may have nothing better to do could have a field day in simply watching what is going on in their area and reporting imaginary abuses of the legislation.
The legislation would be improved considerably if an obligation was put on an aggrieved person to show that they have suffered loss or damage in some way as a result of the practice about which they complain. For that reason I felt it necessary to table this amendment which proposes to replace the words "is aggrieved" with the words "suffers loss".
Senator Howard has argued — this point was raised previously — that the word "aggrieved" is too broad and could give rise to litigation on an undesirably wide scale. The first and most important point to be made in the context of this amendment is that it is the courts who will decide whether a person who claims to be aggrieved is aggrieved or not and whether a loss has been suffered which would give rise to an award of damages. It is interesting to recall, as I did during my reply to the Second Stage debate last week, that it was argued quite strongly in the Dáil that the term "aggrieved person" was too narrow and not too broad. It was urged on me in the Dáil that I should simply allow a right of action to any person, whether aggrieved or not. It is better to leave the interpretation of a term like this to the discretion of the courts who can come to a decision based on all the relevant facts in any particular case.
In terms of definitions, some degree of latitude is necessary in an area that is as characteristically imprecise as economic behaviour. I do not think this will give rise to a situation, which the Senator postulates, where there will be an excess of litigation by people who are cranks and who do not have some genuine interest which they are seeking to protect. In practice, the vast majority of people do not take proceedings lightly. Most of the cases under this Bill will have to be taken in the High Court. The costs in the High Court are high and if somebody brings flippantly or vexatiously proceedings clearly he will lose the case and costs will be awarded against him. That is a very severe penalty. For that reason Senator Howard should not be too concerned about people bringing vexatious or flippant proceedings. I believe it will be confined in practice to people who perceive their genuine economic interest to have been infringed or damaged in some way. It is only in such circumstances that they will take the risks involved in instituting proceedings.
I accept the Minister's argument that it is only an aggrieved person or a person who feels they have suffered some loss who would be prepared to go to the High Court in relation to such matter. However, is it not also provided for in the legislation that an aggrieved person can involve the Authority in initiating inquiries, examinations and, perhaps, actions?
That relates to a later section. The Minister is the only person who can require the Authority to carry out an investigation into some conduct. Other people can, of course, complain to the Authority but the Authority are not bound to act on their complaint. They are bound to act on the request of the Minister to hold an investigation. It was urged on me very strongly in the Dáil that any person should be allowed to require the Authority to carry out an investigation into, say, the abuse of a dominant position. I resisted that argument in the Dáil on the grounds that it would be unfair. Competitors in these circumstances could frequently ask the Authority to investigate somebody or some business and the investigation might go on for about six months. The people running that business might have to devote a great part of their time, over a period of several months, to the investigation and to providing information and answering questions rather than getting on with their business. It would be unfair to allow any person to require such an investigation. The Bill does not provide for that.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 7, between lines 4 and 5, to insert the following new subsection:
"(6) The Competition Authority shall be empowered to take action against an undertaking (including persons who control the undertaking) in respect of abuse of a dominant position.".
Even though the Minister has gone some way already towards meeting the intent behind this measure as it emerged from the Dáil, basically the objective here is to give power to the Authority to take action where it is beyond the capacity of the retailer to take on a large supplier or a large undertaking who may be abusing a position of dominance in the marketplace. It would enable people who would be so constrained to have recourse to the Authority who would examine the position and take action if necessary. I am sure this matter has been dealt with in detail elsewhere, but we must recognise that there are many retail outlets, small and medium-sized, who experience constraints other than financial constraints in challenging a largescale supplier who occupies a dominant position, in taking them to court to recover damages or proving that they were abusing their dominant position in relation to the supply of goods. The amendment would protect the smaller operator and give them recourse to the Authority where the Authority are satisfied that there is abuse of a dominant position.
The central function of the Authority will be that of issuing licences and certificates. The Bill does not intend the Authority to have an enforcement role. I discussed at some length in the Dáil why I thought it undesirable that they have such a role in making decisions on the question of issuing licences and certificates of exemption the Authority act in a quasi-judicial role and it would be inappropriate, therefore, that they should also act as prosecutor. One of the core features of the Bill is its enforcement mechanism. Previous competition legislation — the Restrictive Practices Acts — lay the emphasis on the State as the primary enforcement agency. Provision is also made for the private enforcement of the legislation but this was very rarely used. This legislation for the first time gives people the right to exercise a claim for damages if they feel that they have suffered from the anti-competitive activities of others. Just because the area of law is new does not mean it will be any different or more complicated to enforce.
The Bill gives people the power to exercise their economic rights, which they did not have before. Nobody should have the power, by virtue of their size or anti-competitive practices, to deprive anyone else of the economic right to enter into or compete on an equal basis in any market. It is a basic economic right that anyone adversely affected by the anti-competitive activities of others should have the power to seek redress in the courts. Furthermore who is better to judge and testify that a wrong has been done than the person who has been wronged? I made the point during Second Stage debate in this House that I suspected that if we did give the State responsibility for taking actions in this area, no one would take an action on their own behalf but instead would wait for the State to do this work for them. I see no reason the State should yet again be asked to pick up the tab, as is the case in so many areas of activity.
There is an additional point that needs to be made in respect of the Authority. The Authority carry out the role of investigation and adjudication on applications and, as I have said, it would be inappropriate to give them also the role of prosecutor. It is possible for representative actions to be taken by groups or associations on behalf of their members so that the enforcement requirement does not necessarily always fall on one individual who might be seriously financially embarrassed were he to lose the action. I can cite for the Senator if necessary a number of cases where that has been done in recent years by organisations as diverse as the Irish Creamery Milk Suppliers' Association, the Irish Farmers' Association and SPUC.
Perhaps the Authority would have a role in dealing with, for example, a case of a trader who felt that a particular supplier who may in a dominant position was abusing that position and the trader was aware that if he raised the question of the abuse the supplier was likely to discontinue supplying him. As I understand it, the Minister is recommending that the trade organisation of which a trader was a member would initiate the action on behalf of that trader. Am I correct in that assessment?
If the only person affected by the anti-competitive practice was the individual trader, there would be an onus on him to take the action rather than on an association on his behalf. If, on the other hand, a large number of traders were affected by the action of a particular supplier, it would be open to the association concerned to take the action. The Senator is giving the example where only one trader is affected. In those circumstances he would have to take the action himself. Where representative actions have been taken in the past a large number of people would have been affected by the activity or practice concerned — for example, a large number of farmers or some such group. If only one individual trader is involved he would have to take the action himself.
In view of the Minister's response I will not be pressing the amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill."
I wish to put one or two questions to the Minister relating to the matter of exemplary damages which may well be awarded by the court. I made the point on Second Stage that a paper on this topic had been presented by a leading barrister in which he referred to the body of law which had been built up under Articles 85 and 86 of the Treaty of Rome and he was of the opinion that it would be a matter of trial and error before a balance was struck in the judicial system. It has been suggested to me that the question of damages, and exemplary damages, has been left open and the lack of a yardstick in the legislation may give rise to difficulties. I ask the Minister, therefore, to outline the reasons no yardstick is being provided or guidance given to the courts in the legislation which would be followed in assessing damages, and particularly exemplary damages.
It is not at all normal in legislation to try to tie the courts down to specific levels of damages. You will find in Acts over many years that the assessment of damages is very largely a matter for the courts themselves. In the circumstances of a particular case the damages normally amount to the loss which has accrued to the plaintiff as a result of the wrongful action on the part of the defendant. Be it a case involving a motor accident, personal injuries or arising out of a breach of contract, the non-payment of goods or an anti-competitive practice, as is the case here, it would be a matter for the plaintiff to prove the damages he has suffered which will vary from case to case. It would be rather difficult to set down in advance criteria by which damages would be assessed.
During the years a considerable corpus of jurisprudence has been built up on the assessment of damages in a wide variety of cases. The courts follow those rules. I do not see any need in this instance to change those rules because they are not inappropriate to the assessment of damages in the kind of case which will arise under section 6.
So far as exemplary damages are concerned, again, that is a matter which will be within the discretion of the court. They are not normally awarded. To give the court jurisdiction to award exemplary damages one would have to make provision for this in the section which is what we have done. I thought it necessary to do that because there are some instances involving anti-competitive practices and/or the abuse of dominant position where the actual damages suffered by an individual plaintiff may be relatively small in his own personal case but where the conduct is flagrantly wrong. It would, therefore, be appropriate for the court to mark its disapproval of the flagrantly wrong conduct of the defendant by awarding damages in excess of the actual financial loss suffered by an individual plaintiff. This is the type of case where it should be open to the court to have that power. They have it in some other instances. They do not use it that often but I could see instances under this Bill where it would be appropriate. I do not think it will be used very often; it is only in flagrant cases that it will be used.
On the measure or amount of exemplary damages, again, it would be very hard in advance to lay down guidelines because cases and the personal attitude or conduct of the defendant will vary so much. Some defendants will go in and be relatively apologetic about what they have done and will seek to minimise their damages while others, I venture to guess — I can think of one or two — might readily go into court and brazen their way through no matter how clear the evidence that they have acted inproperly. Again, it is best in cases like this to leave it to the discretion of the court. If the court is tied down very tightly or narrowly as to what it can do, frequently it cannot do justice in particular circumstances because cases vary so much one from another.
Question put and agreed to.
NEW SECTION.
I move amendment No. 3:
In page 7, before section 7, to insert the following new section:
"7—Where an undertaking has an annual turnover of less than £3,000,000 notification of agreements, decisions or concerted practices to which it is party need not be notified to the Competition Authority under section 7.".
The figure mentioned in the amendment may be considered to be a notional one. The point I am trying to make is that we should establish a figure to make it unnecessary for undertakings with a turnover less than that figure to notify the Competition Authority of the matters referred to. This brings me back to a point I made earlier. Many people believe they will require either a certificate or a licence to be safe irrespective of the size of their operation. We should establish a figure, therefore, and state in the legislation that it will not be necessary for a company or a firm with a turnover less than that figure to notify the Competition Authority of the matters referred to. This would have the advantage of reducing the compliance costs of small operators having regard to the fact that this measure will create another layer of bureaucracy. It would have the added advantage of removing the possibility that there will be a deluge of applications to the Competition Authority bearing in mind that this is the area where most abuses could occur and most damage caused.
While I have suggested the figure of £3 million, I am not committed to it. As I said, we should establish a figure and state that if a firm have a turnover less than that figure, given that their activities will not have the effect of distorting or damaging trade on a wide scale, it will be unnecessary for them to notify the Competition Authority of the matter referred to or to apply for a licence or a certificate of exemption. As I said, this would have the added advantage of removing the possibility that there will be a deluge of applications to the Competition Authority from businesses — I accept the Minister's assurances — who believe they will only be safe if they have one document or the other.
It would be dangerous to introduce a rule like this into the text of the Bill for the following reasons. The question of having de minimis rules was raised by the Fair Trade Commission in their report on competition law. It was subsequently given some attention in drawing up the proposals that now make up the Bill. The Commission suggested in paragraph 9.29 of their report that a turnover of £5 million should be required for an agreement to be caught by the prohibition. This is not the same as exempting an undertaking with a specific turnover, as this amendment envisages. It was not found possible to devise universal criteria which, while allowing some degree of exemption, did not create dangerous loopholes. It should be noted that the Fair Trade Commission themselves recommended in paragraph 9.29 and 9.30 that even if a de minimis rule was provided for it should not apply to price fixing or to collusive tendering.
The issue of examptions is best left to the Authority. The Authority will be able to address the issue on a case by case basis when issuing licences for categories of agreements. It is not realistic to include in the Bill de minimis provisions that would apply to every trade and every sector in all circumstances. This is particularly the case when, as section 4 now stands, the prohibition on anti-competitive agreements extends to “any part of the State”.
Apart from the principle of the amendment, I have to suggest that the turnover figure suggested is perhaps misjudged if what the Senator is trying to do is to exempt businesses whose impact on competition would be minimal. He chooses a turnover figure of £3 million and would propose to exempt every undertaking which had an annual turnover of less than that figure. He says he is not tied to the figure, and I quite accept that, but let us take it as an indicative figure in regard to some of the sensitive trades. There are probably very few public houses in Ireland with a turnover in excess of £3 million.
None.
I am reliably advised by Senator Bohan, who should know, that there are none. There is no petrol filling station in Ireland with a turnover in excess of £3 million. There is no barrister in Ireland with gross fee income of more than £3 million and there are probably only a handful of solicitors' firms in Ireland with a gross turnover in excess of £3 million. Therefore, the effect of this amendment would be to exempt every publican, every petrol filling station, every barrister and every solicitor and I do not think that would be in the public interest. I would not agree with that. Some of the categories I have mentioned are among those where it is in the public interest that their concerted practices or other activities would be subject to the supervision of the Bill.
I had in mind some of the categories to which the Minister referred but not others. I sympathise with him in relation to some of the categories he referred to, but there is a difficulty. We talked of publicans, public houses and filling stations. The effect of the amendment would, I acknowledge, exclude a very substantial number of public houses, filling stations, some small shopkeepers and people in the grocery trade. I am not totally committed to the figure of £3 million and if the Minister were to suggest a lesser figure I would certainly be quite happy to go along with it.
The alternative of not accepting an amendment on the lines I have put down is to include every public house, every filling station and every shop. This is the difficulty. I accept that the threshold of £3 million would exclude the bulk of the people I am concerned about, but without an amendment on these lines we are simply bringing them all in. That ties in with the argument I was raising earlier. It is necessary to have something that will exclude the small operators from the necessity of having to seek either one document or the other.
They can exclude themselves, big or small, by not engaging in concerted practices or in any competitive practices. That is the best way. If the Senator is arguing that they should be excluded by virtue of their turnover he is saying that they engage in these improper practices and that they want to continue to do so——
I am not saying that.
——but want to be exempted. I know the Senator has not said that in so many words but I respectfully suggest that his argument implies that. If they do not engage in the practices they will not be caught by the Act. We have seen, mirabilec dictu, some changes of late; things I was told a year or two ago would never happen are now happening. We cannot even mention the profession concerned because of the sensitivities, but changes are happening. I venture to forecast to the Seanad that even more will happen quickly. It is in the public interest that these things are happening. That is already one of the effects of this Bill, before it has even been passed. That is very good.
Amendment put.
The Committee divided: Tá, 17; Níl, 26.
Tá
- Cosgrave, Liam.
- Costello, Joe.
- Harte, John.
- Hourigan, Richard V.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- McDonald, Charlie.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Ó Foighil, Pól.
- O'Reilly, Joe.
- O'Toole, Joe.
- Ross, Shane P. N.
- Staunton, Myles.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Foley, Denis.
- Haughey, Seán F.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- Lydon, Don.
- McCarthy, Seán.
- McKenna, Tony.
- Mullooly, Brian.
- Murphy, John A.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G. V.
Tellers: Tá, Senators Cosgrave and Neville; Níl, Senators Wright and S. Haughey.
Amendment declared lost.
On a point of order — and perhaps I should await the return of the Minister — I gather at the beginning of his remarks the Minister drew attention to the fact that I had not been in the House last week when he was speaking.
First, it is very unusual for a Minister to make that type of charge against a Member who was not present during the parliamentary debate. For the record, I was attending a meeting of the British-Irish Interparliamentary Body in Brussels last week when this Bill was debated. I think the Minister was entirely out of order in making that remark.
I must point out that I do not believe what the Senator has raised is a point of order. Under the Constitution the Minister is entitled to come to this House and to address the House. I have no control over the statements either of the Minister or of any Member of the House.
Again, on that point, I think it is out of order for the Minister to draw attention to the absence of a Member when that Member is absent on legitimate grounds. It is highly unfortunate——
There is no restriction or control over the Minister's contribution to this House either in standing Orders or in the Constitution. I must adhere to both of those.
A Chathaoirligh, I thank you for allowing me to put the record straight on the matter.
Sections 7 and 8 agreed to.
SECTION 9.
I move amendment No. 4:
In page 8, lines 38 to 45, to delete subsection (1) and substitute the following new subsection:
"(1) Any undertaking or association of undertakings concerned, or any other person aggrieved by the decision of the Authority to grant or refuse an exemption or negative clearance certificate under section 4 (2) or (4), or the Minister, may appeal to the High Court within 56 days of publication pursuant to this Act of the decision to grant or refuse the exemption or negative clearance certificate and on the hearing of any such appeal the Court may confirm, amend or revoke the decision of the Authority to grant or refuse an exemption or certificate and in so doing may in the case of a refusal to grant a licence or certificate decide to grant such a licence or certificate subject to such terms as are appropriate in the circumstances and in accordance with section 4.".
Section 9 deals with appeals to the High Court. It appears that any person may object to the granting of a licence or a certificate to a trader or to an organisation in regard to supplying goods and services. Should the licence or certificate be granted to the trader or organisation in question that would be a matter for an appeal to the High Court against the granting of the licence. On the other hand, if a trader or an undertaking is refused either a licence or a certificate by the Competition Authority they are excluded from appealing that decision to the courts. That is wrong, it is not evenhanded justice. It has been always part of our judicial system that there is a right of appeal through the court system. In this legislation we appear to be providing on the one hand the right of appeal against the granting of a licence or a certificate and on the other hand we are refusing to grant the right of appeal where the Authority refuses to grant either a licence or a certificate. That is unfair and that is the reasoning behind the amendment I have tabled on this section.
I put down the amendment to ensure that there will be balance and fair play in the system. For those who are aggrieved by a granting of a licence or a certificate, and particularly those whom the Authority refuse to grant either a licence or a certificate, they too should have the right of appeal to the courts.
There are a number of elements to this amendment. First, it proposes to give an automatic right of appeal to the High Court against the refusal of a licence or a certificate. In framing the Bill a deliberate choice was made to give the greatest weight possible to decisions of the Competition Authority. Accordingly, an automatic right to appeal against a refusal of a licence or a certificate has not been included. Constitutional obligations have to be respected and that is why there is a right to appeal against the granting of a licence or a certificate. The granting of a licence or certificate has an effect on third parties while the refusal of a licence or certificate does not have an effect on a third party. It will, of course, be open, by way of judicial review, for aggrieved parties to make a case in the High Court in respect of refusals of a licence or certificate.
The second element is the the amendment suggests the period within which an appeal may be made should be extended from 28 to 56 days. The extension of time to 56 days would undermine the legal security given to parties who have been given a licence or a certificate; 28 days is the standard time for an appeal to be made. Subsection (5) allows the court to extend that time "in any case where it seems just and convenient to do so".
Thirdly, the amendment suggests that the courts would be directly involved in the issuing of licences and certificates and attaching terms or conditions to them. There is no reason to make the High Court a substitute for the Authority. There are a number of technical deficiencies in the proposal apart from the key points which I have already mentioned. The amendment uses the terms "exemption", "licence", "negative clearance certificate" although there are really only two ideas involved. The extent of confusion generated by this terminology can best be seen in the final lines of the amendment which would allow the court to grant a certificate "subject to such terms as are appropriate". A certificate cannot be subject to terms or conditions. A certificate, as section 4(4) makes clear means that the agreement, decision or concerted practice does not offend against section 4(1). It is and has to be unconditional.
I am seeking clarification on one point. Did the Minister say — if I understood him correctly — that it would be open to those who are refused a licence or a certificate by the Authority to seek a judicial review of the decision of the Authority?
Yes, I said that. It would be open to them if they can find appropriate grounds to bring themselves within the general parameters of judicial review as exercised or practised by the High Court. It does not necessarily mean that there will be an automatic right in every case but if the aggrieved party could show that his rights were in some way infringed by the High Court not having heard him or not having dealt with the matter exactly as they should have, then he could apply for a judicial review. It is not automatic.
Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
I raised a few points on Second Stage on which I seek clarification. It may well be that we could deal with the point about which I am concerned at this stage. Section 10 deals with the establishment of the Competition Authority. Subsection (3) of that section states:
The Authority shall in particular discharge any function of the Fair Trade Commission under the Act of 1972 not completed at the commencement of this section and, accordingly, sections 7 and 8 of the Act of 1978 are amended by the substitution of references to the Fair Authority for references to the Fair Trade Commission.
Subsection (4) states:
The provisions of the Schedule shall have effect in relation to the Authority.
The Minister earlier acknowledged that it would be operating in a semi-judicial environment. Therefore, I am concerned on two grounds. Is the same protection offered to people under the ordinary judicial system afforded here? It is not clearly spelled out. What protection will there be for members of the Authority and authorised officers of the Authority, who in the course of their business, act illegally, abuse their position or cause, by some act of theirs, a person to be damaged in one way or another? What precise protection will the members of the Authority, and their authorised officers, have in relation to their own position?
Those questions are dealt with in the Schedule and might perhaps most usefully be discussed when we come to it.
Question put and agreed to.
NEW SECTION.
I move amendment No. 5:
In page 9, before section 11, to insert the following new section:
"11. —(1) The Authority may on its own initiative, or on request by an interested person or at the request of the Minister study and analyse and carry out investigations into matters relating to competition and in particular with a view to ensuring compliance with the provisions of this Act. The results of such studies, analyses and investigations shall be made available to the public in as full a form as possible while having regard to the legitimate interest of undertakings in the protection of the confidentiality of their business.
(2) Subsection (1) includes investigations where the Authority is of the opinion that there may be, contrary to section 5, an abuse of a dominant position.”.
I am attempting to ensure in this amendment that at all times the workings of the Authority will be fair, even-handed and above question. I will welcome the Minister's comments on this amendment.
Nothing in section 11 as it stands prevents the Authority from suggesting areas of study or analysis to the Minister. This applies equally to any study which may be necessary on a section 5 type abuse. As there may be numerous areas which could be singled out for study, it is important that a decision on which areas to select rests with the Minister. It has to be recognised that the primary task of the Authority under the Bill, especially while experience of the system is being gained, will be to deal expeditiously with notifications made under section 7. The system will not work unless this is done and these matters are dealt with expeditiously. The Authority will also have the task of examining and reporting on merger proposals referred to them. While it is intended that the resources of the Authority will be strengthened compared to what is available to the Fair Trade Commission, additional resources will, of course, not be infinite. The Authority must concentrate on their essential tasks and, therefore, the amendment as proposed is too broad. In particular the Senator might reflect on the fact that it includes an obligation on the Authority to conduct a study, analysis or an investigation on request by an interested person. That really could be anybody. It would leave companies or businesses open to the potential abuse of having investigations carried on into them at the instance of their own competitors for purely competitive reasons, rather than genuine legal reasons.
Amendment, by leave, withdrawn.
Sections 11 to 19, inclusive, agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."
I wish to raise a number of queries in relation to the powers of the authorised officers. However, in view of the fact that I intended to raise somewhat similar questions in relation to the standing of the members of the Authority perhaps we should leave the queries for debate on the Schedule. Does the same point of view prevail in relation to the authorised officers and their powers?
They can be discussed on the Schedule but if the Senator wishes to discuss the appointment by the Minister or the Authority of persons to be authorised officers he is, of course, free to do it on this section. It may be repetitive as it will come up again. The Senator may have more scope on the Schedule.
Question put and agreed to.
SECTION 21.
An Leas-Chathaoirleach
Amendments Nos. 6 and 7 are related and may be discussed together.
I move amendment No. 6:
In page 14, subsection (1) (a), to delete all words from and including "or in" in line 3 down to and including "carried on," in line 5.
The purpose of both amendments is to meet a situation in regard to the position of professional advisers. I am talking about the position of accountants, solicitors and so on. The section as drafted is extremely broad and can include a variety of professional advisers. The question of the professional independence of such people is being called into question here. The same applies to the confidentiality which has always existed and which should exist between a client and his or her advisers — solicitors, accountants and so on. We can best deal with the concerns that have been expressed here by having the matter amended in the manner I suggest, by including the word "directly". Subsection (a) states: "or in connection with the organisation or assistance of persons engaged in any such business, is carried on". That is very sweeping and wide. If we include the words "directly employed" it will ensure that those who have a direct involvement with what is being investigated or looked at will certainly be within its scope. It would preserve the professional independence and the confidentiality that exists between clients and their professional advisers, which many people regard as extremely important.
Amendment No. 6 would delete the words "or in connection with the organisation or assistance of persons engaged in any such business, is carried on". Aside from all other considerations, the words "is carried on" cannot be deleted if the paragraph is to make sense. If they were taken out there would be no verb in the sentence and section 21 (1) (a) would have no meaning.
A more fundamental issue is the consequence of the amendment. It would provide a loophole for those wishing to avoid the effect of the law. Effectively, business papers could be stored in a safe house. The amendment would act only to protect those who wish to avoid compliance with the law.
The amendment may be an attempt to deal with concern for privileged communications, and the Senator mentioned solicitors and accountants. The Bill makes no change to the existing position. Section 15 (1) (a) of the Restrictive Practices Act, 1972, contains the same words as are contained in section 21 (1) (a) of the Bill.
The danger of the proposal is that it offers assistance to those who would try to avoid the law, but I am sure that is not the Senator's intention. He might once again consider whether the amendment is wise in all the circumstances, particularly having regard to the fact that the precise wording of the provision has been in use for 19 years and does not seem to have given rise to any difficulties.
Amendment No. 7 would also restrict the existing powers of authorised officers. Section 15 (1) (b) of the 1972 Act does not restrict its scope to persons directly employed. A convincing argument to make a change now after 19 years has not, in my view, been advanced in support of the proposal.
I understood the Minister to say that privileged information would still be protected under the 1972 legislation. Could he elaborate a little on that matter?
I did not say that it was protected under the 1972 legislation. What I said was that it may be that the concern here is for privileged communications and I mentioned the Senator's reference to solicitors and accountants. I said that the wording in section 21 (1) (a) was the same as the wording in section 15 of the Restrictive Practices Act, 1972, and that because it was not new wording I did not think it would cause any major problem or upset. If a problem were likely to arise I think it would have arisen in the past 19 years.
I wish to stay with the issue of privileged information. Do I understand that privileged information will remain privileged and protected?
The question of privilege will not be affected by the Bill. The same rules will apply in so far as certain matters are privileged. Deliberate attempts, in conjunction with a professional adviser, to circumvent the law, however, could hardly be entitled to the protection of privilege.
Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
Section 21 agreed to.
Sections 22 to 24, inclusive, agreed to.
SCHEDULE.
I move amendment No. 8:
In page 17, between lines 5 and 6, to insert the following new subsections:
"(3) A Witness who is summoned to attend before the Competition Authority may attend with his Legal Adviser or may conduct such hearing through his Legal Adviser.
(4) A Witness who is summoned to appear before the Competition Authority may appeal such summons to the Circuit Court or the High Court.".
Amendment No. 8 seeks to ensure that a person who is summoned to attend before the Competition Authority may attend with his or her legal adviser or may conduct such hearing through his or her legal adviser and also that a witness who is summoned to appear before the Competition Authority may appeal such summons to the Circuit Court or the High Court.
As I explained during the discussion on Second Stage, I am concerned that a new situation may be created. Perhaps the Minister will disagree with my observation, but that the new Authority will have substantial powers and will effectively function as a court without being a court. Our judicial system has always provided for an appeals mechanism. For that reason, I believe that a person who is summoned to attend before the Competition Authority should have the right to appeal that summons either to the Circuit Court or the High Court. Equally, I believe it has always been part of our judicial system that if a person wishes then he or she attends the judicial hearing with his or her legal adviser and very often he or she also has the right to conduct the hearings in which he or she is involved through his or her legal adviser. As I understand the Bill, neither option is given to a person summoned to appear before the Authority. I have other questions in relation to this Schedule, but perhaps the Minister could deal with that issue first.
Senator Howard identified his concerns in relation to the rights of witnesses called before the Authority. I have to make it clear that there is no great innovation in this part of the Schedule. It is based on the corresponding provision in the Schedule to the 1972 legislation. Under that provision witnesses have been summoned by the commission and have given evidence. During the 19 years the legislation has been in operation no problem or complaint in that respect has come to my attention. Therefore, I suggest that the Senator's fears may be misplaced. The wording in paragraph 7 of the first Schedule to the Restrictive Practices Act, 1972, is almost identical to that now proposed, and, as I said, no problem has arisen.
Senator Howard proposes that a witness may attend with his legal adviser. Of course that is the position and no provision needs to be made for that under the Bill. Witnesses may bring their legal adviser, if they want to, and they regularly do so.
The amendment goes on to state: "or may conduct such hearing through his legal adviser". I presume the intention there is that a witness may be represented throughout a hearing by his or her legal adviser. A witness certainly may not conduct a hearing because the hearing would be conducted by the Authority, but he or she can be represented by his legal adviser in the court hearing or, I suppose, for the whole duration if he or she wants to be so represented. It is not necessary to provide that. It is an automatic right. Under exactly the same provisions in the 1972 Act people have frequently had their legal advisers. I do not know of any instance where the issuing of a summons would be appealed by any court or by any authority. If somebody is improperly summoned, or feels that they are, they could apply for judicial review if they thought it appropriate, but it would really make the work of the authority very difficult if the issue of summonses was going to be appealed. It would mean that the Authority would not really be exercising the sort of jurisdiction they should. Their work would be held up unduly if people were challenging summonses on appeal to the High Court under a statutory right to do so. If they are wronged in some way by being summoned they can have it judicially reviewed.
I welcome confirmation by the Minister that a witness summoned to attend before the Authority has the right to have their legal adviser representing them during the entire hearing.
The second part of my amendment deals with the right of a person summoned before the Competition Authority to appeal such summons to the Circuit Court or the High Court. I am not satisfied with the Minister's reply because of the powers being devolved on the Competition authority and their authorised officers. I raised this question because of the protection that is there for the Authority and their authorised officers if it were found that they acted illegally or in such a way as to cause damage to people they were dealing with. Will the Minister elaborate further on that point?
I raised a number of other questions in relation to the powers of the Authority. Authorised officers and members of the Authority will have enormous powers and will be acting in a semi-judicial manner. They have powers that normally belong to a court of law; a witness is obliged to bring documents and be examined in relation to them. The officer is, in effect, acting like a court in a court of law and compelling witnesses to provide information.
On Second Stage I dealt with the further powers of authorised officers to inspect and take extracts from books, documents and records. I did not get a reply to the points I raised about the issuing of summonses and how the power to issue summonses will be conferred on the members of the Authority of their authorised officers. I pointed out that the power to issue summonses was reserved to commissioners for oaths who were appointed by the President of the High Court. I wondered if the same system would apply in relation to the officers and members of the Authority; would they, in effect, be commissioners for oaths and have the power to administer an oath?
It is for those reasons, and others that I will go into shortly, that I feel it is desirable that it should be in the legislation that a person who is summoned to appear before the Authority could appeal that summons. We are into an area where the Authority have the powers of a court of law. I would like the Minister to comment on these points in the light of the powers and the protection members of the Authority will have as opposed to that available to members of the public. The Minister's comments might help me in coming to a decision in relation to the second part of my amendment.
On the question of the powers of authorised officers, I would refer the Senator to section 21 (2) which provides that an authorised officer can only act in the way described by the Senator, entering the premises or taking copies of documents or records. If he gets a warrant from a district justice, the district justice must be satisfied by information on oath that it is proper for him to issue the warrant for the purposes of subsection (1) of section 21. The authorised officer cannot act arbitrarily. He cannot just decide, out of the blue, that he is going to go into an office or premises and request documentation on a mere whim. He has to satisfy a district justice, on oath, that the obtaining of this information is necessary because he perceives some impropriety to have taken place which is a breach of this Act. That is a perfect safeguard for people. I do not think the Senator should be unduly concerned about it.
The Senator expressed concern about the position of witnesses before the Authority. I would draw his attention to subparagraph (2) of paragraph 7 of the Schedule which says that a witness before the Authority should be entitled to the same immunities and privileges as if he were a witness before the High Court. If he has the same immunities and privileges that is adequate protection for him. I am not aware that the case is made that witnesses before the High Court are unduly penalised or at any undue disadvantage, and if they are not, then witnesses before the Authority are in exactly the same position. They should not need to fear.
On the question of administering the oath and signing the summons and so on, the provisions in this Schedule are exactly the same as they are in the First Schedule of the 1972 Act. They have operated for 19 years. There is nothing terribly significant about administering an oath. There are several thousand people throughout the country who are empowered to do that and the power here is given by this Bill. It is given only to the members of the Authority to administer, not to authorised officers. The Senator confused authorised officers with members. There are only three members envisaged. They conduct the hearing, as it were, and hear the evidence. The investigation on the ground is done by the authorised officers. The Senator compares the Authority to a court and says that it is the equivalent of a court of law. If the Senator looks at paragraph 7 (4) (c) he will see the Authority described in terms which make it clear that they are not a Court. I have described them as acting in a quasi-judicial fashion. They cannot act in a judicial fashion because they are prohibited by the Constitution from doing so. Paragraph 7 (4) (c) reads:
(c) does any other thing which would, if the Authority were a court, having power to commit for contempt of court, be contempt of such court,
shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or imprisonment for a period not exceeding six months or, at the descretion of the court, to both such fine and imprisonment.
In other words, if the question of contempt arises, it has to be removed from the Authority and brought before a court established under the Constitution who then hears the question as to whether there was contempt. That court, and not the authority, has the right to invoke a penalty if it sees fit.
I welcome the last point made by the Minister because I thought that a member of the public would be at a very serious disadvantage and would be automatically guilty of an offence if the Competition Authority or an authorised officer of the Authority were of the opinion that that person had information even if he did not have it. I was attempting to establish what protection the person who was genuinely not in a position to assist the Authority or its authorised officer had. If I understand the concluding remarks of the Minister correctly whatever views the Authority may hold, the conviction and imposition of a penalty would be a matter for the court where the accused could prove his innocence. Will the Minister say if my interpretation is correct?
It is, in so far as I understand it. The Senator is on occasions confusing the authorised officers with the members of the Authority. If he looks at paragraph 7 (4) of the Schedule he will find that the person referred to there is a person who has been summoned as a witness before the Authority at a formal hearing. It is not somebody out on the street, as it were, who is being approached by an authorised officer. It is not an offence to tell an authorised officer that one does not have information which he believes one has. If one has not got the information then one cannot give it.
Either to the Authority or an authorised officer?
At subparagraph (4) (a), (b) and (c) are there different types of default, as it were, that a witness can commit. The first, is not to turn up at all. The second is, having turned up to refuse to take the oath or to produce documents which are in one's possession. The third, is to do something, which if the Authority were a court — and it is not, it is specifically described as not being a court — would be contempt of that court. But the decision to penalise will not be made by the Authority. As the Senator will see at subparagraph (4) (c) the decision would have to be made in a court and the Authority specifically is not such.
Amendment, by leave, withdrawn.
Schedule agreed to.
Title agreed to.
Acting Chairman
When is it proposed to take the next Stage?
Mr. Farrell
Now.
I am opposed to taking the remaining Stages of the Bill now because of the situation the House found itself in, in relation to dealing with the measure. I accept the Minister's observation that it was not his fault. But the reality is that the measure came before the House today for Committee and all Stages of the Bill, with no hope of having the Bill amended even if necessary, because of the desire of the Government to have the measure on the Statute Book during the summer and in view of the fact that the Dáil is in recess and could not take amendments to the Bill if they were made here. Therefore, to register my protest and the protest of my colleagues, I oppose the taking of the remaining Stages, even though I acknowledge that the manner in which the Bill is dealt with by this House is not the Minister's responsibility. Indeed the Minister has been constructive and helpful in the discussion here today, but, nonetheless, the integrity of the House has been called into question to a degree, and for that reason I oppose the taking of the remaining Stages of the Bill.
While a particular amount of time has been allocated for the Committee and remaining Stages, we are now finished an hour ahead of the allocated time. In view of what Senator Manning said about me this morning I might also remind the House that the time allocated last week for Second Stage also proved to be too long — we finished more than an hour ahead of time. We are again an hour ahead of time so I do not think anybody can make a legitimate complaint about the debate being shortened. The time allocated was proved to be more then adequate. I am also very grateful to the Cathaoirleach for making the point that a Minister is allowed to speak in this House and that Members of the House who criticise the Minister are not exempt from being replied to. The point made by Senator Manning to that effect seemed to be particularly undemocratic.
As I said earlier, on Committee Stage in the other House some 99 amendments were put down, including some from the Minister. This was a measure of the concern the other House had about the Bill. However, not all of those amendments were dealt with because of time constraints. All of the amendments put down here today are in my name. Irrespective of their feelings, other Members on this side of the House did not put down amendments because they saw the futility of doing so as only two and three-quarter hours were allocated for the debate today. That is wrong. I am sure some Senators felt as strongly about this Bill as Members of the other House and would have put down amendments if the Dáil had not already risen for the summer recess and the Government had not stated the need to have the legislation enacted before the next session.
The question is: "That the Bill be received for final consideration." Is that agreed?
No.
Question put.
The Seanad divided: Tá, 29; Níl, 13.
Tá
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Costello, Joe.
- Cullen, Martin.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Foley, Denis.
- Haughey, Seán F.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Michael.
- Lydon, Don.
- McCarthy, Seán.
- McKenna, Tony.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Eamon.
- O'Keeffe, Batt.
- O'Toole, Joe.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G. V.
Níl
- Cosgrave, Liam.
- Doyle, Avril.
- Hourigan, Richard V.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- McDonald, Charlie.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Ó Foighil, Pól.
- Ross, Shane P.N.
Tellers: Tá, Senators Wright and S. Haughey; Níl, Senators Cosgrave and Neville.
Question declared carried.
Question: "That the Bill do now pass", put and agreed to.
Sitting suspended at 1.35 p.m. and resumed at 2.15 p.m.