Charlie McConalogue (Donegal, Fianna Fail) | Oireachtas source

It is something that will be kept under review over time. Regarding specific fines like this, we are saying they can be up to €10 million or 10% of a company's turnover. If we had a company, for example, with a turnover of €1 billion, then the fine could be up to €100 million in a specific instance. It is appropriate that such a high and punitive penalty would be defined in primary legislation. I did examine the potential for it to be possible that the Minister, by regulation or statutory instrument, could be empowered by this legislation to change this provision down the line, perhaps in ten, 15 or 20 years as things move on.

However, the problem is that a Minister would decide what the fines should be, including the fine a court could apply, without primary legislation. This is a significant matter and it can be amended by primary legislation. I took legal advice, according to which the Minister setting himself or herself up as judge by setting the maximum threshold would not be robust legally. There would need to be Oireachtas endorsement.

The amendment differentiates between the specific penalties for undertakings and individuals. This differentiation is not necessary. When interpreting legislation, a reference to a person includes a reference to a body corporate. This matter is provided for in section 18(c) of the Interpretation Act 2005. As such, the amendment would be inconsistent with the rest of the Bill because it does not acknowledge section 82, which, together with the definition of a "person" under the Interpretation Act, means that all penalties contained in sections 66 and 80 can be applied to individuals, companies and company members, officers, directors, etc. as the circumstances of a case warrant.