Mr. Se?n Murphy:

Our comments in this regard are generally based on our experience to date of enforcing similar provisions in the consumer protection field. There is a suite of remedies. Which one we use depends on the nature of the breach encountered. We like to use what we call a quadrant, whereby we look at the intent and the information behind the breach itself. To give an example, well-intentioned and well-informed traders will not appear on our radar because they are doing things properly. Those instances, then, involving well-intentioned but ill-informed traders could be cases where those concerned do not realise they are engaging in something to that effect. This is why we would deploy something like a compliance notice in that type of instance where we have identified something that is an offence and could be prosecuted in itself. We will, however, make a call based on the intent behind the practice concerned and if those involved knew what they were doing. Moving on, the third quadrant concerns those traders who are ill-informed and ill-intentioned. These situations just go to prosecution. The intent was there in the first place and those involved had a paucity of information regarding what they were doing. The final quadrant then is the one that is probably the most problematic, namely, those who are well-informed but ill-intentioned. Traders in this area might know what they are doing and be very aware strategically of it. This requires us to have the robust framework we referred to in respect of having a suite of interventions available.

This is not necessarily just about enforcement. Particular breaches that emerge might be examined. The office would be in a position to advise the Minister that it has encountered certain practices that are not necessarily called out as prohibited in themselves. This is a minimum harmonisation directive, which sets out ten blacklist and six grey list provisions. They are not finite lists. As the office develops in the years to come and gets to grips with the markets, which are complex, and the relationships in this area, it must have several interventions available to it. This is what we welcome in that sense. Examples would be a compliance notice, where an officer would identify an issue, make a judgement call, in consultation with whatever internal processes the office might have, and then deploy a compliance notice to address the issue and to bring it back on track. That type of process is for those lower-level breaches. In cases of other types of breaches, however, it would obviously not be appropriate or suitable to deal with them in that way and that is why criminal provisions are also needed to address those issues. This is the complexity we are referring to in this context.