Mr. David Hegarty:

It is important to reiterate the point that the director just made. There is a difference between enforcement and regulation. Enforcement is different. The Law Reform Commission report sets out what three distinguishing features of a regulator would be. One is the setting of standards, the second is a supervisory function and the third is enforcement. Unequivocally, we perform the third function. There is no real supervisory function in the way that there would be with regulated entities. That is where the Law Reform Commission report speaks more to regulators than to enforcers. It talks more about the supervisory functions.

There are two further issues relating to the existing powers. The Law Reform Commission summarised the existing powers of all the regulators and enforcers, namely, investigation and inquiry, search and investigation, negative enforcement - we have all of those powers. We do not so much have powers in civil financial sanctions. There is provision in sections 957AA to 957I of the 2018 Act to allow for limited administrative financial sanctions in discrete circumstances under Part 13 of the Act, but that is a subset.

There are summary prosecutions and so on. Those are the powers that regulatory enforcement agencies have. A great deal of significance is attributed to the regulatory toolkit in the LRC's report.

We have many of the powers that an enforcer needs and others would not be appropriate for us to have in all circumstances, or it could be argued that it would not be appropriate to have them as an enforcement authority. Those include the powers to enter and search promises, to impose administrative sanctions and to bring summary prosecutions. While it would be a policy decision, it could be argued that others relating to a wide range of regulatory compliance agreements or settlements might not be appropriate. If an enforcement agency detects criminality and it is sufficiently serious to invoke the criminal resources that the agency has, it probably is not an appropriate matter for a regulatory settlement. Chapters 3, 4 and 5 of the LRC report refer to administrative financial sanctions, settlement agreements and deferred prosecution agreements. Of those, deferred prosecution agreements would be most relevant in some senses but that would be a matter for the Director of Public Prosecutions to determine, not the ODCE or other corporate enforcement authorities.

The overarching thrust of the LRC report is more directed towards regulatory agencies. An enforcer does not have that kind of interaction with a supervised body. The director spoke to that earlier. If one had one overarching authority and left each of the other agencies with a right of election as to whether to keep a prosecution themselves or pass it on, there is a theoretical possibility that each of those might say that they will pass one on and keep another for various reasons. By centralising everything, there is also a nexus between the regulator and regulatee that would be very important in broadcasting and other sectors where highly technical expertise is necessary. That is not strictly as relevant to the performance of the ODCE or the corporate enforcement authority of their functions. That ultimately all comes back to the distinction between an enforcer and a regulator. I do not want to say the LRC report conflated the two but it was much more focused on addressing issues relating to regulatory governance.