SELECT COMMITTEE ON ENTERPRISE, TRADE AND EMPLOYMENT díospóireacht -
Tuesday, 18 May 2010

Competition (Amendment) Bill 2010: Committee Stage

Vice Chairman

This meeting has been convened for the purpose of consideration by this committee of the Competition (Amendment) Bill 2010. I welcome the Minister of State at the Department of Enterprise, Trade and Innovation with special responsibility for science, technology, innovation and natural resources, Deputy Conor Lenihan, and his officials, Mr. Kieran Grace, principal officer, Ms Julia O'Malley, assistant principal officer, and Mr. Brian Dalton, higher executive officer, and thank them for their attendance.

I suggest we consider this Bill, if necessary, until 6 p.m. If we have not concluded by then a further meeting will be arranged. Is that agreed? Agreed. All members have a copy of the amendment list and the groupings. It is proposed to group the following amendments for the purposes of debate, amendments Nos. 7 to 9, inclusive. Is that agreed? Agreed.

Deputy Michael D. Higgins

Chairman, before you call on the Minister of State for his opening statement, I wish to state I am substituting for Deputy Penrose. When the Minister of State has concluded his opening statement I wish to address the issue of the ruling out of amendments Nos. 2 and 3 in the name of Deputy Penrose.

Vice Chairman

I have been advised they are out of order, therefore, they are not liable for discussion.

Deputy Michael D. Higgins

The issue is the grounds that they are outside the scope of the Bill. It would be an unusual ruling because all legislation coming before the House has to satisfy the requirement of sufficiency. If one did not reply to this, for the sake of the record of any particular committee, one would be accepting the principle that any Minister or Minister of State could proceed on the basis of saying that the purpose of this Bill is only to achieve a very narrow subject without allowing the committee to address this issue as to whether this is an adequate exercise or not.

In the plenary session of the Dáil there have been several references to amending the Competition Act and there was nothing in any of those statements to suggest that the competition legislation that would come before the Dáil and be further considered in a committee would be limited entirely to dealing with one or two matters. This is not contentious, it is simply to say that the integrity of the committee is at stake. I do not believe the Minister can say he will only be doing this in this particular legislation and in doing that effectively exercise a sanction against members who said that when we were discussing this the intention had been that the Competition Act would be amended in several other ways. It may well be the Minister's reply on this case that we are only doing whatever, but one cannot say that to facilitate a narrow interpretation by the Minister or Minister of State one can on that basis rule out amendments that are quite logically aimed at the legislation.

Vice Chairman

I understand that Deputy. It would not be the Minister's decision whether to rule out proposed amendments. The notes we have indicate that amendments Nos. 1 to 3, inclusive, in the name of Deputy Willie Penrose have been disallowed as they are outside the scope of the Bill and the amendments do not relate to the make up of the Competition Authority, which is the only item comprehended within the Bill. A similar ruling was given on amendments Nos. 4, 5 and 6a in the name of Deputy Leo Varadkar.

Deputy Michael D. Higgins

I cannot take that interpretation. Deputy Varadkar will be able to deal with his amendments as well. What is the source of this ruling? I simply challenge this ruling.

Deputy Leo Varadkar

On a point of order, I join Deputy Higgins in challenging this ruling. I have not been in this House for a very long time, but I have been here long enough to see Ministers introduce amendments on Committee Stage in the House and in the Seanad and even on Report Stage that give the Bill a different dimension, that did not exist when the Bill was first published. I refer to the recent Companies Act (Amendment) Bill, where significant changes were made to the Bill, by means of an amendment introduced by the Minister. I do not see how the Vice Chairman, in chairing this committee, can allow Ministers to significantly change or add to the issues dealt with in a Bill and not allow members of the Opposition to do the same, as we are Members of Parliament and we represent the people and the public interest. We are not here to rubber stamp decisions made by Ministers.

Vice Chairman

I understand that point. I did not have any input into this decision. This decision was made by the Bills Office.

Deputy Leo Varadkar

It was signed by Deputy Cyprian Brady, the Vice Chairman

Vice Chairman

I understand that. I signed it as chairperson.

Deputy Michael D. Higgins

It is an incorrect decision and I would not like it to establish a bad precedent.

Vice Chairman

It is a matter that the Deputy might have to take up with the Houses.

Minister of State at the Department of Enterprise, Trade and Innovation (Deputy Conor Lenihan)

It might be worth clarifying. I know Deputy Varadkar is not a long-time Member of the Dáil, but it was not the Minister who made any of these decisions. I would appreciate if the Deputy would refrain from suggesting that the Minister had something to do with this. Neither the Minister, Deputy Batt O'Keeffe, nor I had anything to do with this. This was a matter for the Bills Office.

Vice Chairman

Deputies, we have a great deal of work to do, so we must move on.

Deputy Michael D. Higgins

Let me clarify that last point. I was a member of Cabinet and I initiated legislation in my time. Nobody suggests that the Minister or Minister of State is behaving in the slightest way improperly. We are saying that a Minister seeks permission from Cabinet to introduce legislation, and then goes to the Bills Office for what one has clearance for and asks that it be prepared for the legislative process. It may well be that there are reasons for keeping the legislation in this case so narrow, but it is open to any Member of the Oireachtas to say on the occasion when we are amending the competition legislation, that we should not lose the opportunity to add significant amendments. This is what we have done. The Vice Chairman has the choice of saying that the Bills Office has ruled that only that which is before us from the Minister can be discussed on this occasion. I am not anxious to waste time, but one of the reasons Deputy Penrose asked me to substitute for him is that one of these amendments is an amendment that was the subject of Private Members, legislation on my own behalf and on which we may hold different views.

The point I make is that it is very serious to close down the discussion on sufficiency on every occasion that one brings in legislation. Surely it is open to the relevant committee to ask why a matter promised in the plenary session is not being dealt with. The Bills Office is not elected; we the elected members are the committee of the House.

Deputy Leo Varadkar

The Chairman might ask who in the Bills Office makes these decisions.

Vice Chairman

I am not privy to that information. I am advised that the Bills Office makes the decision.

Deputy Leo Varadkar

The Bills Office is an entity, it is not a person.

Deputy Edward O’Keeffe

Let us proceed with the Bill.

Deputy Leo Varadkar

I formally register my discontent with this decision, because the amendments I tabled relate to services of general economic interest, which relates to public services and as things stand the Government cannot negotiate with doctors, pharmacists and dentists on a new contract, which is in the interests of the Government and in the interests of the public so that the services can be provided to the public and paid for by the State. The Government, despite a commitment that it would introduce legislation to change this, cannot negotiate a contract to improve public services because of section 4 as it stands. The Government has not brought in legislation to allow it to do that. I register my protest.

Vice Chairman

The chair has noted that. Let us proceed.

Deputy Michael D. Higgins

The Irish Congress of Trade Unions and the Government made an agreement on amendments to section 4.

Deputy Edward O’Keeffe

I have strong reservations about the Bill and the competition between the big man versus the small man.

Vice Chairman

The Deputy can make those points during the course of the discussion of the Bill. I ask the Minister to proceed with his statement.

Deputy Conor Lenihan

Thank you, Chairman. I am intrigued by the reason doctors should be exempted from the scope of this competition legislation. I know the Deputy is a doctor.

Deputy Leo Varadkar

They should not be exempt, but it should be possible for the Government to negotiate a contract if the Government so wishes.

Deputy Conor Lenihan

Perhaps we should clarify whether the Deputy is speaking for the profession or as a public representative.

Deputy Leo Varadkar

I am not a member of the IMO. I have no contract with the State to provide medical services.

Deputy Conor Lenihan

Is the Deputy speaking as a Dáil Deputy?

Deputy Leo Varadkar

I am speaking in the interest of the public.

Vice Chairman

Let the Minister proceed.

Deputy Conor Lenihan

Their interests would be served by exempting doctors from competition law?

Deputy Leo Varadkar

The Government has committed to bring in legislation in this regard. Deputy Lenihan may not know that, as he is only a Minister of State. I suggest that he talk to the Minister about it.

Deputy Conor Lenihan

We are not planning to legislate in the manner described by the doctor and Deputy opposite. The purpose of this targeted and focused Bill is to amend section 35 of the Competition Act 2002 to permit the appointment of temporary members to the Competition Authority. This amendment will enable the Minister for Enterprise, Trade and Innovation to appoint temporary members to fill vacancies in the Competition Authority which will have the effect of reducing membership below the statutory minimum requirement of chairperson and two members.

Section 35 of the 2002 Act provides that the authority shall consist of a chairperson and a minimum of two other members. Prior to January 2009, the authority had a chairperson and four other members. Since that date it has been carrying one vacancy at membership level. In March of this year, the chairperson resigned to take up the position of financial services ombudsman and following legal advice the Minister appointed a sitting member of the authority as chairperson on a temporary basis. With the intended departure of an additional member during May, this would have the combined effect of leaving the authority with only one member and a chairperson.

The Minister is concerned that an improperly constituted authority would be unable to fulfil its statutory obligations and that any decisions made would be open to legal challenge. As the Minister, Deputy Batt O'Keeffe, stated on Second Stage, he must ensure that the authority can function with the requisite statutory membership. Following enactment of this Bill, the Minister intends to appoint two temporary members, which will allow the authority to fulfil its statutory obligations until he appoints whole-time members following a public appointment service competition in accordance with section 35(3) of the 2002 Act. The Bill provides that appointees must have "sufficient expertise in or experience of one or more of the following areas — law, economics, public administration, consumer affairs or business generally.", thereby ensuring that suitably qualified and experienced people can be appointed to the authority, even on a temporary basis. The integrity of the authority's decision making power will continue to be protected in terms of the number and quality of its members. I commend the Bill to the committee.

Deputy Edward O’Keeffe

I welcome the Minister of State. I have strong views on the Competition Authority and I am sorry Deputy Penrose is not present because he expresses the same views. Since its inception, all we have seen from the Competition Authority is the tackling and criticism of small business. It was set up to control monopolies and to make things more competitive. Small manufacturers are being screwed into the ground by large multiples, such as Tesco, because of monopolies and the way the Competition Authority is structured. This structure means it protects big business rather than small businesses. I am not criticising the Minister of State, the Minister or the Government but we need amendments and a new Bill to protect people.

I come from rural Ireland and rural business is very important to me and many people outside of Dublin. I receive complaints that people are being closed down because of competition. I will give the example of Thurles, where Erin Foods and Campbell Soup Ireland were located. Some 80 jobs were lost there because of the decision of the Competition Authority. I regularly go to hurling finals in Thurles, which is the home of hurling. Cork and Tipperary matches make for a great day in Thurles. I approach the town from the Cork side and I see the eyesore, which reminds me of the loss of 80 jobs. This is the greatest scandal that took place under the Competition Authority when it recommended the closure. There are further examples in my home town of Mitchelstown, where many jobs were lost, and a business could sell its brands to another multiple in the country at the loss of many jobs. The case was taken to the Supreme Court and the Supreme Court upheld the view of the Competition Authority. I abhor those decisions in Ireland because the legislation is based on American legislation and there is need for friendly legislation slanted towards the Irish State and tying in with European legislation.

I do not agree with Deputy Varadkar's comments about the Minister of State because he has a bright future and he is one of the most intelligent Ministers of State with vision. The Minister of State may come to reside in greener pastures. If so, I hope he will amend this legislation. Deputy Penrose and I are at one on this issue and I am very disappointed he is not here because he has a great feel for small manufacturers, rural Ireland and rural business. These are the areas that suffer under the Competition Authority. A number of temporary members will not help.

I welcome Deputy Penrose, who has just arrived. I sought his support because I am fighting the Competition Authority on the basis of what it has done to our country in respect of small manufacturers and suppliers. It has allowed monopolising multiplies to take over, such as Tesco, which is no addition to this country in what it is doing to people. A manufacturer in my constituency employed 110 people. He telephoned me to say that Tesco would not take additional business from him. Tesco did not want what he had and could buy it from another country and another manufacturer. This will put him out of business. If we had a good Competition Authority that would not happen. Another employer telephoned me to say he had been forced to pay "hello" money. He employed 400 people. The Competition Authority is big business but I am not interested in big business and the party of Government was never interested in big business. I ask the Minister of State to rectify that.

SECTION 1

Vice Chairman

We will now proceed with the amendments to the Bill. In section 1, amendment No. 1 has been ruled out of order.

Deputy Michael D. Higgins

No, amendment No. 2 has been ruled out of order.

Vice Chairman

Amendment No. 4 has been ruled out of order. It is outside the scope of the Bill.

Deputy Leo Varadkar

What about amendment No. 1?

Vice Chairman

That has already been dealt with. We will move directly to amendment No. 6. The other amendments are covered by the previous letter. That is the advice I am being given by the clerk to the committee.

Deputy Michael D. Higgins

A previous letter suggested that what was out of order were amendments numbers——

Vice Chairman

I am sorry, Deputy, amendments Nos. 1 to 5, inclusive, have already been dealt with or are outside the scope of the Bill. We are dealing with amendment No. 6.

Deputy Michael D. Higgins

I have had no communication that amendment No. 1 is out of order.

Deputy Willie Penrose

Why is it out of order?

Vice Chairman

These have been ruled out of order by the Bills Office. We move directly to amendment No. 6 in the name of Deputy Varadkar.

Deputy Leo Varadkar

Have we clarified that amendment No. 1 is out of order? I do not see why it is outside the scope of the Bill.

Vice Chairman

If Deputy Varadkar has an issue with this he must address it with the Bills Office. We are here to deal with the amendments as they are presented on the list. Amendments Nos. 1 to 5 have been ruled out of order.

Deputy Michael D. Higgins

I am happy to have it on the record.

Vice Chairman

We have already got that.

Deputy Michael D. Higgins

My recommendation to Deputy Penrose will be to take up this matter with the Committee on Procedure and Privileges. It is outrageous.

Amendments Nos. 1 to 3, inclusive, not moved.

Section 1 agreed to.

NEW SECTIONS

Amendment Nos. 4 and 5 not moved.

Deputy Leo Varadkar

I move amendment No. 6:

In page 3, before section 2, to insert the following new section:

"2.—The Principal Act is amended by the substitution of the following for section 35:

"35.—(1) The Membership of the Authority shall consist of—

(a) a Chairperson and such number of other whole-time members, not being less than 2 or more than 4, as the Minister determines and appoints (but that limitation does not affect an appointment under paragraph (b),

(b) in any case where it appears to the Minister that a member referred to in paragraph (a) is temporarily unable to discharge his or her duties, a whole-time member appointed by the Minister, for all or part of that period of inability, to act in that member’s place,

(c) an appointment made pursuant to paragraph (b) shall not exceed 6 months and the Minister shall cause the vacancy which arises under paragraph (b) to be advertised and appointed in accordance with subsection (2),

(d) such other number of part-time members as the Minister may determine and appoint in accordance with subsections (2) and (9).

(2) The members of the Authority shall be appointed in the following manner:

(a) Where a vacancy arises in the membership of the Authority, the Minister shall submit the names of 7 people to the Chairperson of the Oireachtas Committee on Enterprise, Trade and Employment (which shall be referred to in this section as “the Committee”).

(b) The Minister shall not submit the name of any person who, in the opinion of the Minister, does not possess sufficient expertise in one or more of the following areas, namely competition law or policy, consumer law or policy or utility regulation.

(c) A person to whom paragraph (a) applies shall, on the request of the Committee, give evidence to that Committee on—

(i) his or her suitability for appointment to the position of member of the Competition Authority,

(ii) his or her qualifications for appointment to the position of member of the Competition Authority,

(iii) such other matters pertaining only to the appointment of a member of the Competition Authority.

(d) The Committee shall be required to confirm or decline the nomination of a person under paragraph (a) to the Minister within 7 days of the evidence under paragraph (c) having been completed.

(e) Where the Committee confirms the nomination of a person under paragraph (d) the Minister shall order their appointment by resolution of Dáil Éireann.

(f) Where the Committee declines the nomination of a person under paragraph (d), it shall be required to state to the Minister the reasons for its decision in subsequent private session of the Committee, where requested by the Minister.

(g) Where the Committee declines the nomination of a person under paragraph (d), the Minister shall nominate two persons, who have not already been nominated under this section, for consideration in respect of each outstanding vacancy.

(h) Where the Committee declines the nomination of a person under paragraph (d), and the Minister makes a submission under paragraph (g), the Committee may invoke its powers under paragraph (c) in respect of the alternative nominees.

(i) Where the Committee declines the nomination of a person under paragraph (d), and the Minister makes a submission under paragraph (g), the Committee shall be required to make a recommendation from the alternative candidates submitted under paragraph (g) to fill the remaining vacancies on the Competition Authority.

(j) The Chairperson of the Oireachtas Committee on Enterprise, Trade and Employment shall, with the approval of that Committee, nominate one of the appointed members as Chairperson of the Competition Authority.

(3) Notwithstanding any other act or provision, a person who is a civil servant is not eligible for any appointment to the Authority.

(4) If a person, who is at the time of their appointment to any vacancy to which this section applies a member of staff of the Authority, they shall immediately resign their position as a member of staff of the Authority on appointment under this section.

(5) The term of office of a member of the Authority shall be a period of five years.

(6) An outgoing member of the Authority shall be eligible for reappointment, but shall not be reappointed more than once in any circumstances.

(7) Each member of the Authority shall hold office on such conditions as may be fixed by the Minister after consultation with the Minster for Finance. The Minister shall notify the Committee of such conditions in advance of the appointment being made under subsection (2).

(8) Each member of the Authority may be paid such remuneration, if any, as the Minster with the consent of the Minster for Finance, determines. The Minister shall notify the Committee of such remuneration in advance of the appointment being made under subsection (2).

(9) Sections 15 and 17 of the Civil Service Commissioners Act, 1956, shall apply, with any necessary modifications, in relation to appointments of members of the Authority as they apply in relation to appointments to positions in the civil service and, accordingly, the Minister shall not appoint a person to be such a member unless the Civil Service Commissioners, after holding a competition under that section 15, have, under that section 17, selected the person for appointment and advised the Minister accordingly.

(10) Subject to subsection (9), the Civil Service Commissioners Act, 1956, and the Civil Service Regulation Acts, 1956 and 1958, shall not apply to the office of a member.

(11) If a member of the Authority is personally interested in a particular matter with which the Authority is dealing, he or she shall inform the Minister accordingly and shall not act as a member during the consideration of the matter.

(12) (a) The Minister may remove from office a member of the Authority who has become incapable through ill-health of performing efficiently his or her duties as such member or whose removal appears to the Minister to be necessary in the interests of the effective and economical performance of the functions of the Authority.

(b) The Minister may not exercise his power under paragraph (a) unless he or she has received approval for such action from the Committee.

(c) Where the Minister removes a member of the Authority from office, he or she shall lay before each House of the Oireachtas a statement in writing of the reasons for such removal.

(13) A member of the Authority may resign his or her office.".".

This amendment proposes to amend section 2 to provide for proper Oireachtas scrutiny of appointments to the Competition Authority. The Minister failed or was unable, for various reasons, to arrange a competition to fill vacancies in the Competition Authority when they arose. He intends to fill these vacancies on a temporary basis for six months. I do not understand why this does not allow Members of this House and particularly committee members to scrutinise those appointments. Perhaps some of the points raised by Deputy Edward O'Keeffe would be better addressed to a nominee of the Minister rather than to the Minister of State, who does not deal directly with the Competition Authority in his brief. This proposal has been proposed for inclusion in several Bills, whereby when the Minister nominates people to serve on the Competition Authority, they should appear before the committee. The committee could then hold hearings on suitability and qualifications to take up a position on the Competition Authority but this would not include the personal lives of nominees. Within seven days, evidence is heard and the committee can then confirm the nomination to the Minister, who will make the appointment by resolution of the Dáil. In the event that the committee declines the nomination, the Minister nominates two other people for consideration and in those cases the committee can choose from the two nominations made by the Minister.

This amendment also allows the Minister to remove someone from office who is incapable of performing duties due to ill-health. The Minister should receive permission from the committee to do so and should provide reasons in writing for doing so. This proposal has been made several times and is the norm in other countries. There should be proper Oireachtas scrutiny of appointments of such significance and importance. I am pleased to see the Minister for Communications, Energy and Natural Resources has included a measure like this in respect of appointments to the Broadcasting Authority of Ireland. If we can see some openness and progress in the Government and in that Department, I do not see why we cannot have it from the Minister in respect of this Bill.

Deputy Willie Penrose

I accept it is not the decision of the Vice Chairman to rule these amendments out of order but it is the advice he received. I have no dispute with Deputy Brady as Vice Chairman. We must take up this matter because it is no use being stooges here. We are entitled to table amendments that reflect the will of the general public, on whose behalf we advocate.

Deputy Varadkar's points are well made and I will not reiterate them. The Minister of State, Deputy Calleary, has already gone some way towards accepting this in the context of FÁS. It was not exactly what we wanted and amounted only to a toe in the door which would allow submissions to be made on a person's suitability. We do not advocate delving into people's personal matters because prurience about personal lives is not becoming in any parliament. Nevertheless, it is important to ensure people have the competence and qualifications for a particular position. The Competition Authority makes major decisions on cartels and concerted practices so there needs to be a level of competence and knowledge to deal with those issues. The decisions made have significant consequences for people.

The decision by the Minister of State, Deputy Calleary, to allow us to make a submission on the suitability of a candidate was no more than tokenism. The Minister should submit a panel of candidates for the committee to scrutinise. The scrutiny would not need to be as intense as it is in other jurisdictions where they delve into various trivial aspects of people's personal lives but it should be such as would test a person's ability to do the job.

Deputy Varadkar makes the case very well and has done so in the context of various Bills that have come before this committee. The Minister should allow his amendment as it is about time Opposition amendments were treated as substantial attempts to improve a Bill and to enhance the understanding of the general public with a view to positively affecting our governance.

Deputy Edward O’Keeffe

This suggestion is becoming a trend around the House but it is implemented without being written into any Bill. Traditionally, we have appointed some of the finest people in the land to State boards and other organisations. I ask the Opposition if this will be its policy if and when it gets into Government? I remember a former coalition which virtually appointed all but the kitchen sink to State boards and every Tom, Dick and Harry got on to a board.

I am critical of the Competition Authority but it is the legislation which needs to be regulated. In the 1990s we tackled monopolies in cement and feedstuffs but the focus has now switched to the small man. I do not criticise people on boards or how they are appointed because they will be people of calibre, ability and knowledge and I have great confidence in the Minister to appoint them. The Opposition now tells us its members have to meet the candidates to scrutinise them but my Government will do what is right for the country.

Deputy Arthur Morgan

In principle, I support the Fine Gael amendment No. 6. It is very similar to my amendment No. 8 which we will discuss next. I do not know what Deputy O'Keeffe is afraid of.

Deputy Edward O’Keeffe

I am not afraid.

Deputy Arthur Morgan

I do not know why he is concerned about the prospect of a person who is about to be appointed to an important State position coming before a committee for a conversation. As Deputy Penrose said, this is not a plan to look into the personal affairs of a person but to tease out that person's general qualifications, to allay concerns the general public may have about political appointments.

Deputy Michael D. Higgins

I have a certain sympathy with what Deputy O'Keeffe said. It is hard not to conclude that the Competition Authority, as constituted from 2004 onwards, went after soft targets while at the same time allowing conditions of monopoly and the abuse of small businesses to prevail. For example, what is its record on outlawing "hello" money? What is its record on the anti-business practice of sucking in small suppliers, only to make them dependent on a major retailer? When conditions change they lose their contract and there is a loss of jobs as a result. The Competition Authority went after actors and concluded:

As a starting point, we consider whether the Revenue Commissioners treat actors as employees subject to PAYE or as independent contractors. The Authority's investigation revealed that the vast majority of actors in the State are not treated as PAYE employees. While this one factor is not outcome determinative it is a useful starting place. Actors providing advertising services are generally not obliged to work for a single advertising agency. They may work for several at the same time.

That shows what ignorance existed of the life of an actor. In case I need to declare an interest, my wife is a member of Actors Equity but not a practising member. It goes on:

Such actors generally do not receive the benefits one usually associates with a contract for labour. For example, they generally do not receive holiday pay, health insurance, maternity leave and the like. Such actors generally do not have employment security. Such actors are free to accept or decline a specific piece of work as they see fit.

Actors, therefore, are regarded as independent business enterprises. The Competition Authority went after them and brought the case to the steps of the court. When faced with jail, the representative of SIPTU had to walk away. In later disputes, not necessarily related to that of the actors, the Government entered into an agreement with the social partners that it would introduce legislation at the first opportunity to amend section 4 but it is not doing so.

Deputy Varadkar's amendment calls for the insertion of the words "including bodies representing a group of undertakings". The Minister of State might be sympathetic to this point. In its interpretation of section 4 of the principal Act, the Competition Authority violated the Industrial Relations Act 1990 and its own Competition Act 2001. It was in contravention of an ILO convention which had been solemnly agreed to by Ireland, as well as EU Regulation No. 87 of 1998. If Deputy O'Keeffe wanted a level playing field would he not want to go after the principal abusers? Would he not seek to resist those who are trying to establish a dependence on small suppliers? They abuse such relationships when the time comes for bills to be paid, for example through the use of 90-day credit. People have sought to get payments from the richest companies in this country, some of which are owned by interests outside the country. Some of the practices used would not be acceptable in any parish in Ireland. It is very hard not to say something.

I am surprised by Deputy Ned O'Keeffe's comments about the membership of the Competition Authority. I agree that we should have openness and that we should employ the most competent people. There is nothing very republican about going after actors while leaving the monopolies in place.

Deputy Conor Lenihan

I often find myself in agreement with Deputy Higgins. I tend to think the thrust of what he is saying is correct. That is why the serious matter relating to actors will be dealt with in the context of the forthcoming Bill in this area. I have served as a Dáil Deputy on many committees. Some years ago, I was quite horrified by the performance of members of the Competition Authority before the Committee of Public Accounts. It was clear that they had absolutely no grasp of the various targets. The attitude of some members of the authority was to behave like Eliot Ness by chasing soft targets rather than dealing with the serious monopolies that may exist.

Deputy Edward O’Keeffe

Hear, hear.

Deputy Conor Lenihan

Deputy Ned O'Keeffe was correct to say that some large multiples in this country have clearly abused their dominant positions. I am personally acquainted with people who have been forced to make payments, described as "marketing support", to assist large multiples. That has actually happened. Such people are refusing to come forward because they cannot challenge the economic power enjoyed by the multiples. If small business people do not play ball, the multiples can put them out of business by voiding their contracts. We are dealing with that in a draft——

Deputy Edward O’Keeffe

On a point of order, the large multiples are holding onto their own margins. They want to take everyone else's margins without giving up their own margins.

Vice Chairman

I ask the Deputy to allow the Minister of State to continue.

Deputy Edward O’Keeffe

I am making the point that I appreciate what the Minister of State is saying about this serious issue.

Vice Chairman

Fair enough.

Deputy Conor Lenihan

I agree with Deputy Edward O'Keeffe in this regard. That is why we are trying to move the voluntary code onto a statutory basis. It is not fair that multiples are able to exert undue influence on vulnerable small businesses. When multiples launch their latest giveaway campaigns, in order to pull in more customers, it is grossly unfair of them to push around small businesses of just one or two people, which supply goods and services to them, by asking them to come up with marketing assistance payments. Such practices will be addressed in the context of the new Bill and the code of practice for the grocery trade, which is being discussed. It is interesting that many years ago a joint Oireachtas committee, of which I was a member at the time, conducted an investigation into this matter and warned that this precise scenario was likely to arise. We are now looking at the situation as it is happening. I share the frustration of members in that regard. Ten years ago, the joint committee heard a great deal of evidence to suggest that this was a possibility. Now that it has happened, we need to be on our guard against it.

Deputy Varadkar's specific amendment seeks to select the members of the Competition Authority through a process of Oireachtas scrutiny by the Joint Committee on Enterprise, Trade and Employment. It relates to the appointment of all members of the authority and is not solely applicable to the temporary whole-time members on which this Bill focuses. The amendment proposes that the members of the authority be selected through a process of Oireachtas scrutiny. If it is accepted, the joint committee will approve or decline the nominations of members nominated by the Minister. The amendment also provides that the Minister for Enterprise, Trade and Innovation will appoint temporary whole-time members to the board. In order to ensure suitable people are appointed, the Bill as drafted foresees that appointees to these temporary positions must, in the opinion of the Minister, possess "sufficient expertise in, or experience of, one or more of the following areas, namely, law, economics, public administration, consumer affairs, or business generally".

As Deputy Varadkar's amendment goes well beyond the intent of the targeted and focused Bill that is being considered here today, I cannot accept it. As I said earlier, however, I accept the principle that members of Oireachtas committees must be prepared to vigorously contest the independence and credibility of the Competition Authority and its membership, precisely because it enjoys such independence. It should be subject to routine and regular scrutiny from committees of this nature. Some of the authority's past decisions have been flawed in so far as they have concentrated on what Deputy Higgins has described today as "soft targets", rather than on real hard-edged targets.

Deputy Leo Varadkar

I thank Deputies Morgan, Penrose and Higgins for supporting this amendment. I am disappointed with the Minister of State's response. Given that the Minister of State believes this amendment is beyond the scope of the Bill, it is interesting that it was not ruled out of order, unlike the other amendments. Deputy Ned O'Keeffe is quite right to say it has been the tradition in this country for Ministers to make appointments to authorities, boards and other agencies. Traditions change, however. The FÁS vacancies were advertised. The Oireachtas scrutinised the appointments to the board of the Broadcasting Authority of Ireland. There has also been a change with regard to the Competition Authority — up until now, members of the authority were appointed following an open competition run by the Public Appointments Service. This Bill is a retrograde step in so far as it allows for appointments to be made on a temporary basis and potentially on an ongoing basis.

Deputy Conor Lenihan

No.

Deputy Leo Varadkar

Yes, it does. It allows for this to happen again.

Deputy Conor Lenihan

Full-time or whole-time appointments must be made through the public recruitment service.

Deputy Leo Varadkar

It allows for other six-month appointments to be made in this way and for such appointments to be turned into year-long appointments.

Deputy Conor Lenihan

That can only happen in the case of an extraordinary set of circumstances, in which it falls below its number——

Deputy Leo Varadkar

It may arise on a number of occasions.

Deputy Conor Lenihan

——and only on a temporary basis.

Deputy Leo Varadkar

The point I am making is correct. Until now, the only way somebody could become a member of the Competition Authority was through a competition organised by the Public Appointments Service. This retrograde step will allow the Minister to appoint somebody to the Competition Authority in the old-fashioned way, albeit on a temporary basis. That is why we need to have Oireachtas scrutiny. I hope a situation does not arise in which the Minister starts once more to appoint insiders who would not have been successful in a competition. That is how vacancies on the Competition Authority were filled before now. I am pursuing this amendment for that reason.

I assure Deputy O'Keeffe that this policy is contained in Fine Gael's New Politics plan. We have published a Private Members' Bill that would give effect to it. The Deputy might be interested to know that the Government shares that policy, according to the revised programme for Government. It will be interesting to see whether the Government introduces legislation to that effect before we get an opportunity to do so.

Deputy Edward O’Keeffe

It will.

Vice Chairman

Is Deputy Varadkar pressing the amendment?

Deputy Leo Varadkar

I am.

Amendment put.

The Committee divided: Tá, 4; Níl, 7.

Tá

• Clune, Deirdre.
• Morgan, Arthur.
• Penrose, Willie.
• Varadkar, Leo.

Níl

• Andrews, Chris.
• Brady, Cyprian.
• Conlon, Margaret.
• Fitzpatrick, Michael.
• Kennedy, Michael.
• Lenihan, Conor.
• O’Keeffe, Edward.

Amendment declared lost.

SECTION 2

Vice Chairman

Amendments Nos. 7 to 9, inclusive, are related and may be taken together by agreement.

Deputy Arthur Morgan

I move amendment No. 7:

In page 3, line 18, to delete "appoint" and substitute "nominate".

The general thrust of this amendment is to have the Minister nominate rather than appoint a member to the Competition Authority. The essence of these three amendments is that on nomination by the Minister a nominee will appear before the Oireachtas Joint Committee on Enterprise, Trade and Employment for interview and to give evidence in regard to, as pointed out earlier and stated in amendment 8, subsections (d) (i) his or her suitability for appointment to the position of member of the authority and (ii) his or her qualifications for appointment to the position of member of the authority. The general suitability of the member would be established under those criterion.

I note that currently in the USA the sexual orientation of a judge nominated for appointment to the Supreme Court has become a matter for public debate. Obviously we are not speaking here about such frivolous and unimportant nonsense, which does not relate to a person's suitability for appointment. We are speaking here about appointing people who are able to do the job. The Minister of State spoke earlier about vigorously contesting the Competition Authority. We will not have to do so if there is on board a good team in terms of appointees. The amendments also seek to provide that the Oireachtas rather than the Minister will be the appointing authority. That is a belt and braces approach to these appointments. It is downright good practice. This is a democratic forum so why not open up these important appointments to this forum. I do not think anybody envisages an inquisition and it would be common sense to do so.

Deputy Leo Varadkar

I support Deputy Morgan's amendment. In many ways the intention behind it is similar to my amendment but it is done in a different way. For those same reasons I support it. However, I would have come concern about paragraph (g) of amendment No. 8. I think I tabled an amendment on it but it is not here for some reason, perhaps I did not. I am concerned that those members appointed to the Competition Authority should have expertise or experience of law, economics, public administration, consumer affairs or business generally. It would be difficult to find someone who would not fit into that criteria of law, economics, public administration, consumer affairs or business generally. At least, until now we have had people of a high calibre on the Competition Authority. I would prefer if that had been more restrictive perhaps to people who had experience of consumer and competition law and policy rather than just business generally or public administration which could allow for almost anyone to be appointed. I understand that section is taken from the amendment Bill and is not necessarily part of this amendment. I very much support the broad thrust of Deputy Morgan’s amendment and commend it to the committee.

Deputy Conor Lenihan

These amendments seek to introduce Oireachtas scrutiny for the appointment of the temporary member being appointed under the provisions of the Bill. It does not, unlike Deputy Varadkar's amendments, seek to introduce such scrutiny for appointment of all members to the authority. The amendment proposes that the Joint Committee on Enterprise, Trade and Employment would approve or decline a nomination to the Minister and would nominate the members. A panel of approved nominees would also be established.

The Bill, as drafted, provides that the Minister for Enterprise, Trade and Innovation will appoint the temporary whole-time members of the board with no Oireachtas scrutiny. It is now proposed that the amendment be accepted on the grounds that it should be the responsibility of the Minister for Enterprise, Trade and Innovation to appoint the temporary whole-time members of the authority to meet the issue, the current and upcoming vacancies in the authority. Hopefully, with the passing of this legislation we will not get into a position in the future where we have to make these temporary appointments. They are only made subject to the filling of the whole-time vacancies under the supervision of the Public Appointments Service. Members can take some reassurance from that. Hopefully the forthcoming Bill on competition matters will examine the issue of parliamentary scrutiny in the broad sense of the word as that would be useful. Certainly in my position as Minister of State with responsibility for natural resources I have made the point on the fisheries Bill that I encourage Oireachtas scrutiny and that nominees would appear before Dáil committees. That committee will select three of the members of that particular board so I am not universally hostile to the notion of parliamentary scrutiny and nominations.

Deputy Leo Varadkar

Just in enterprise but not in communications.

Vice Chairman

The Minister of State without interruptions.

Deputy Conor Lenihan

Unlike the board of Inland Fisheries Ireland, the Competition Authority does conduct quasi-legal functions and makes major decisions on whether companies are abusing their position. That requires a slightly different approach and a less populist approach than is merited in other situations. That is the difference in this case.

Vice Chairman

Is the amendment being pressed?

Deputy Arthur Morgan

I would like to reply. The Minister of State could have viewed this as a pilot project which would have afforded the Government an opportunity to see what is intended by the committee in terms of scrutiny and how the Oireachtas, and the Dáil in particular, would react in terms of the resolution of the House to authorise the nominated appointees. It would have demonstrated to the public that politics is being opened up, that this is not jobs for the girls and boys, but that there is an element of scrutiny and an interview process. I reiterate the comments that there would not be an inquisition and that it would be on reasonable grounds.

The qualifications criteria for appointment are quite wide — they are not restricted and are certainly not intended to be. All we want is to ensure we get somebody who can do the job and then we would not have to challenge vigorously the Competition Authority because the authority would do that job. I endorse the comments made earlier in regard to the practice of the Competition Authority to date of going after the small to medium-size people while completing ignoring the big sins being committed particularly by retailers and others.

Deputy Willie Penrose

I have not changed my mind, notwithstanding what the Minister of State has said on the scrutiny process. It is not a matter of deepest invigilation into every aspect of a person's character or background or family or personal circumstances or any invasion of privacy. It is simply to ensure that people are competent. The Minister of State is correct in saying the Competition Authority exercises quasi-judicial functions particularly where there are huge multi-million euro industries involved. That is why it is important to put on the record our thought process in regard to this legislation.

We in the Labour Party are angry and that is the reason we tabled an amendment to section 4 at the first available opportunity. We believe the interpretation given to section 4 by the Competition Authority was inconsistent with the general thrust of and the arguments made during the course of the Competition (Amendment) Bill 2004. In the interpretation of legislation it is important that cognisance is taken of the points made by the various spokespersons and the individual members of a committee such as this, and the broader membership of the House. They are not just throw-away remarks. We are here to invigilate in terms of the legislation the Minister brings forward on behalf of the Government and we do our best to try to improve it.

However, we do not want a situation to ever arise again where, as my colleague Deputy Higgins said, soft targets such as part-time actors, freelance journalists and people of that ilk, were the first port of call to be landed on the steps of the High Court. It was never the intention that the legislation, as initially brought before the House and passed, would provide for taking on all those people who had deemed undertakings and only so many hours work. There are some actors in my own area, very fine people, such as Mary McEvoy from "Glenroe" who worked extremely hard in a business that is precarious. They were the first port of call in that context. That is the reason we want section 4 amended post haste because it grates with us and is an anathema to the very foundations of our party, based on the trade union movement, in 1912. It is important to remember our party was founded about 11 years after the 1901 Act came into being. There is a long history with us and we will not rest until the Bill is amended to reflect the general will of not just the House but the people of Ireland.

Vice Chairman

Is the amendment being pressed?

Deputy Arthur Morgan

Yes.

Amendment put and declared lost.

Amendment Nos. 8 and 9 not moved.

Question, "That section 2 stand part of the Bill," put and declared carried.

Section 3 agreed to.

Title agreed to.

Bill reported without amendment.