Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Apologies have been received from Deputy Kehoe. All those present in the committee room are asked to take personal responsibility to protect themselves and others from the risk of contracting Covid-19. It is important to note that to participate in a division, committee members must be physically present in the committee room. If a division is called, the Minister and members must make their way to committee room 3. Attendees should please mute their microphones if they are not making a contribution and use the raise hand function to indicate. Attendees should please note that messages sent in the meeting are visible to all participants. Speaking slots will be prioritised for members.

This meeting has been convened to consider Committee Stage of the Agricultural and Food Supply Chain Bill 2022. I welcome the Minister for Agriculture, Food and the Marine, Deputy McConalogue, and his officials: Ms Sinéad McPhillips, assistant Secretary General, agrifood strategy and sectoral development; Ms Angela Robinson, principal officer, food industry development division; Mr. Noel Clancy, principal officer, unfair trading practices, UTP, enforcement authority; and Mr. Ray Sheehy, assistant principal officer, food industry development division.

We will now proceed with consideration of the Bill.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

May I speak to amendment No. 1?

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The Deputy's amendment has been ruled out of order but he may speak to it.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Will the Minister give an indication as to whether he would consider at a later stage encompassing the amendment that has been ruled out of order? Almost every stakeholder, particularly those representing farmers, has raised concerns that the definition in the Bill is too narrow in that it relates to business-to-business relationships and does not deal with business-to-consumer relationships. A number of amendments that seek to address that have been ruled out of order. Is the Minister still open to consider amending the legislation in that vein?

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The key objective behind the legislation is to strengthen the role of the primary producer and farmer, in particular. In their engagement with the people they supply, the farmer and primary producer can often be in a weak position. That is the objective behind the Bill.

Where it is primary producer to consumer, we do not have the same situation where the primary producer is necessarily disadvantaged by the consumer. It is about strengthening the role and fairness that is available to the primary producer. Expanding the remit of the regulator to business-to-consumer relationships would also lead to the possibility of duplication and overlap between the two competition and consumer protection authorities. As it is, the Competition and Consumer Protection Commission, CCPC, is responsible for protecting the consumer. What we are about here is protecting the primary producers in their business relationships and in the food supply chain.

Inserting the amendment would require the regulator to have responsibility for the relationships between businesses and consumers, including the sale of foodstuff to consumers. This is not the intention of the Bill or the commitment in the programme for Government. The regulator must be allowed to focus on its core priority, which is the protection of primary producers, including farmers and other food business buyers in strong or economic positions. There is a well-established legislative framework in respect of business to consumer protection.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The Minister mentioned that this is to protect the primary producers. Every primary producer who has appeared before the committee said the range is too narrow. The most recent submission we received from the Irish Farmers' Association, IFA, has reaffirmed that. It is one of the main issues it raised.

If this regulator is going to deliver fairness and transparency in the agrifood supply chain, which is the stated ambition of everybody here, it needs to have a view of the entirety of the supply chain. I do not understand, and cannot accept, that the Bill can achieve that if it does not make any reference at all to the relationship with the consumer.

As has been said, the amendment has been ruled out of order. I ask the Minister to again read the submissions that were received from the farm organisations and take this into account on the next Stage of the Bill's consideration.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I believe I have outlined my position on it.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 2, 4, 16, 18, 24, 28, 30 to 32, inclusive, 36 to 41, inclusive and 44 are related and may be discussed together.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 2:

In page 9, line 22, after “Expenditure” to insert “, National Development Plan Delivery”

It is very straightforward. These amendments all concern proposed amendments by me to amend the name of the Department of Public Expenditure and Reform to the Department of Public Expenditure, National Development Plan Delivery and Reform in light of the recent change of name of the Department, since the Bill was initially published. The references to the Department must be changed throughout the Bill, which is the reason for the numerous amendments.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 3:

In page 10, line 9, to delete “regulator” and substitute “rialálaí”.

The amendment is to address a concern that has been raised in the Oireachtas Joint Committee on the Irish Language, Gaeltacht and the Islands and also to put into practice what the Minister, Deputy Catherine Martin, has stated is Government policy in respect of promoting the use of the Irish language in the names we give to official bodies. The Minister has amended this Bill, which I welcome, to reflect the new title of the office, as Gaeilge, to encourage people to use the Irish language. The amendment is a singular amendment to substitute the word "regulator" with the Irish word "rialálalaí". It is a singular amendment, but if the Minister is willing to accept it the Bills Office would need to do a piece of work to change it across the Bill rather than submitting potentially dozens of amendments. I ask the Minister to consider it.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The official name of the new office will be An Rialálaí Agraibhia. That is the official name in the Bill but we use the word "regulator" to refer to it in the Bill. As Deputy Carthy knows, the feedback from the farming bodies is that the word "regulator" better reflects what we are doing with the Bill and I accept that. There is no doubt that the official name in the legislation is An Rialálaí Agraibhia. We are very clear about that, but I am minded to stick to the word "regulator" to refer to it throughout the Bill.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Is Deputy Carthy pressing the amendment?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Yes.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

In order to avoid a vote on it, we can reflect on it and come back on Report Stage.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

That is fine.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 4:

In page 10, line 19, after “Expenditure” to insert “, National Development Plan Delivery”.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 5 and 6 are related and may be discussed together. Is that agreed? Agreed.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 5:

In page 11, between lines 15 and 16, to insert the following:“(2) The regulator shall collate the costs associated with the production of different foodstuffs in order to determine a cost-of-production, and publish reports on such on an annual basis.”.

This is an important amendment. It takes into consideration the very clear views we have received from farm organisations and other primary producers on an individual basis. It calls for the addition of the following line: "The regulator shall collate the costs associated with the production of different foodstuffs in order to determine a cost-of-production, and publish reports on such on an annual basis."

Amendment No. 6 also inserts that: "Such analysis and published reports should contain appropriate and relevant reference to and contrast with price and market data available internationally." This goes to the crux of what we are told people want the rialálaí or regulator to do, which is ensure that we can end the practice of below-cost selling of groceries. The first step we must take in order to be able to do that is to have an independent body establish what the cost of production is. The body that would be most appropriate to do such work is this new authority. Therefore, we commend the amendment to the Minister and encourage him to consider it.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I thank Deputies Carthy and Martin Browne for the amendments. While a key function of the regulator is to analyse and report on price and market in the agricultural and food supply chain, it is not appropriate to specify in granular detail in primary legislation what aspects of the agricultural and food supply chain should be examined. We believe that the regulator needs to have the flexibility and capacity to direct its resources in a way that makes the most impact and that delivers the best results. I consider that it is for the regulator to independently determine that and what aspects of the supply chain require analysis, and for the regulator to comply as well with any request by the Minister, as provided for in section 12(4), to study or analyse and report on any specified matter relating to the agricultural food supply chain.

The amendment requires that the regulator "shall" collate the costs associated with the production of different foodstuffs. It might legally require the regulator to spend time on foodstuffs that are not seen as particularly relevant at any given time and to use up the regulator's resources in doing that. What we need to do is ensure that the regulator has the capacity and flexibility to direct resources at things that make a difference and an impact in parts of the food supply chain where the attention is required. We do not want people sitting in offices in various places doing work the legislation compels them to do which may not make a meaningful difference or impact on farmers but simply because the legislation obliges them to do. The resources must be specifically targeted. The regulator has the capacity to do that. The reason we are setting up the regulator is so that it oversees the food supply chain and brings transparency to it, but we must enable it to do that rather than through the legislation specifying in granular detail things that may not make a big difference to farmers themselves and primary producers.

Martin Browne (Tipperary, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

We must get this right. The IFA is telling us that if it is to believe in the regulator, it must have the core interests of farmers at heart. Farmers must have faith in the office. It is as simple as that. The costs they incur in production must be collated and reflected in the annual reports. If the regulator is to be of any use, such an amendment is necessary. Let us make sure the regulator is right from the word go rather than going back over it again.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It is interesting that in his previous response the Minister referred to the CCPC. There are numerous instances of public bodies that, in practice, do not do what was intended when they were established by the Legislature. In some instances we must be specific in telling a new body we are establishing what we expect of it. In the long term, we must ensure that farmers are getting a fair price for their product. That is the reason people have sought a regulator for so long, and that is the purpose of it. It is because we believe that if a regulator is operating effectively that it will make a big difference in terms of the chain of supply in the market and the position of farmers therein. In order to do that, there must be a basis in terms of farmers and primary producers understanding what the cost of production is and getting paid above that. That cannot be done unless somebody analyses the cost of production. Therefore, in my view, this amendment is crucial. I will press it.

If the Minister is saying there is a different formula of words that will allow him to accept our premise, we will be eager to have unanimity on it and have it endorsed. If, however, he is saying he does not accept the premise that the new body should have the responsibility proposed, I will need to press the amendment.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The objective of the office is to bring transparency to the food supply chain, assess what is going on in the marketplace and report on it. Under EU regulations and through its farm survey, Teagasc would carry out a detailed assessment of the cost of producing various agricultural products. It already does a lot of that work. It does so under regulation and in accordance with the law. It will be available to the food regulator.

The Deputy's amendment refers to "the costs associated with the production of different foodstuffs". What does "different foodstuffs" mean? This is what the Deputy is saying should be put into primary legislation, but I am saying the office is being set up to achieve the required transparency, gather all the information that exists and work from and complement the information we have. The amendment requires the insertion of the following: "The regulator shall collate the costs associated with the production of different foodstuffs in order to determine a cost-of-production, and publish reports on such on an annual basis." I envisage people sitting in offices considering this foodstuff, that foodstuff and every other foodstuff and producing reports every year to comply with the legislation. What would this actually achieve and mean for the farmer at the farm gate? The body needs to be effective, and that is why we are setting it up as I have described. I do not believe the Deputy's amendment would achieve anything.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I intend to press it because we have been asked to ensure the practice of below-cost selling is prohibitive. We accept there are difficulties with using the legislative route to achieve this. A first step towards it would be ensuring the costs of production are determined. If the Minister were able to provide an alternative formula of words or if he believes the one we have presented is too broad, we would be willing to engage with him on it. From my reading, however, he is saying he simply does not accept the amendment. Therefore, I intend to press it.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Our views are clear on this but we can certainly reflect on this more. There is still the option of coming back to this on Report Stage. I will reflect on the points the Deputy is making. He knows my view as it stands but both of us can reflect on the matter and return to it on Report Stage.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 6:

In page 11, between lines 15 and 16, to insert the following: “(2) Such analysis and published reports should contain appropriate and relevant reference to and contrast with price and market data available internationally.”

This amendment is directly related to No. 5. I am not pressing it but we ask the Minister to review that and on Report Stage we would be happy to look at any language that would mandate An Rialálaí Agraibhia to ensure we have a regulatory body that is in a position to end the long-standing practice of farmers being forced to sell at below the cost of production. The only way that can be done is if the information is collated.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 7, 8 and 14 are related and may be discussed together. They are in the names of Deputies Carthy and Martin Browne.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 7:

In page 11, line 17, after “to” to insert “the full breadth of”.

This amendment involves what the Minister might call a broad point. It is to include the term "the full breadth of" the market chain. It is linked to the amendment that was ruled out of order. Its purpose is to ensure business-to-consumer relationships are included in the regulator's work.

Amendment No. 8 is the most important. It goes to the heart of what we need the regulator to do. It inserts:

(d) in support of the regulator’s activities, the regulator shall be authorised to seek from businesses within the agri-food supply chain any data

impacting upon price and margins considered necessary, including—

(i) prices paid and received,

(ii) margin,

(iii) financial and accounting data,

(iv) throughput of agricultural produce,

(v) data in relation to policy and procedure,

(vi) employment status,

(vii) salary,

and

(e) data referenced under paragraph (d)may be in paper or electronic form[...].

Amendment No. 14 would insert the following additional paragraph:

The regulator shall report to the Minister within 12 months of its establishment date as to its ability to acquire data under ... [a previous section], and make any appropriate recommendation so as to ensure the regulator is empowered to access or seize such data as it requires to meet its obligations.

This speaks to many people's fear about the original language in the heads of Bill that the regulator would be able to collate publicly available data when what is required for a regulator to be effective is for him or her to be able to gather new data in respect of the role of dominant processors and retailers in particular. Therefore, the regulator shall have the authority, if this amendment is accepted, to seek all the information that is sought. The amendment provides that, in the event that the regulator feels he or she requires additional powers in order to be able to fulfil that role, he or she would report to the Minister in order to make that known to the Oireachtas.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

In amendment No. 7 the additional text the Deputy proposes to insert is "the full breadth of" - those are the four words - the agricultural and food supply chain. In the Bill "agricultural and food supply chain" is defined as meaning the supply chain relating to agricultural food products, so I do not believe it is necessary to add these words, but I can reflect on this and we can discuss it further on Report Stage. I do not believe the amendment would change anything but I can certainly reflect on the matter between now and Report Stage and we can discuss it further then.

As for amendment No. 8, is it possible to make amendments on Committee Stage to remove text from amendments as we go or do the amendments have to be dealt with in their entirety?

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

They have to be dealt with in their entirety.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I ask because, generally, I would propose to accept amendment No. 8, but the first line of it, "in support of the regulator's activities, the regulator shall be authorised to", is superfluous because the Bill states that under this section the regulator may do particular things. I suggest, therefore, that the Deputy start from the word "seek", but we can return to this. If we accept-----

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

If the Minister is telling me he will accept the amendment from the word "seek", I will withdraw the amendment and-----

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

If we accept that in full-----

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The Minister accepts the rest of the proposed subsections (d) and (e).

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

If Deputy Carthy returns with his amendment as is but with the first part up to the word "seek" removed, then yes, I will accept it.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

On Report Stage.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

On Report Stage.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

That is agreed.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

What about amendment No. 14?

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I am happy to accept it.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The Minister has said he will return to amendment No. 7 on Report Stage and take on board the comments made and deal with them on Report Stage. As for amendment No. 8, a redrafting of the first sentence is proposed. Then the amendment will be accepted. Amendment No. 14 will be accepted.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

My rationale in respect of amendment No. 14 is that I see it as encompassing what the legislation is designed to do as it is and that those powers are already contained within the Bill, but if Deputy Carthy feels they need to be restated as per the amendment he has put forward, I am happy to accept that.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendment No. 9 has been ruled out of order.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 10:

In page 11, between lines 31 and 32, to insert the following: “(6) The regulator shall, where details considered may be of a commercially sensitive nature, or which may not be in the public domain for the purposes of confidentiality throughout the agri-food supply chain, refrain from publishing such information without the consent of the party concerned.”.

The amendment seeks to address one of the issues raised by sections of the industry. It states:

The regulator shall, where details considered may be of a commercially sensitive nature, or which may not be in the public domain for the purposes of confidentiality throughout the agri-food supply chain, refrain from publishing such information without the consent of the party concerned.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I consider that this needs careful legal scrutiny and I need to reflect further on the proposed amendment in the context of other confidentiality provisions in the Bill. I am not sure that it meets the objectives of what the Deputy outlines. I think that all this is covered in a much clearer way in Chapter 10, where, under "Prohibited disclosures", section 51(1) states that "A person shall not disclose confidential information obtained in the capacity of or in the course of acting as" and lists a range of people. Then subsection (2) states that subsection (1) does not apply to a disclosure authorised by the regulator. Therefore, I believe that these powers are already there. I think the amendment, as the Deputy has put it forward, is contradictory in some ways and makes the Bill less rather than more clear.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I have outlined that amendment No. 5 will be reflected on again by the Minister and that amendment No. 8 will see a change to the first sentence. Amendment No. 14 will be accepted by the Minister. With those agreements and changes reflected, I will put the question.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 11:

In page 12, line 14, after “law” to insert “and anti-competitive actions in the agri-food supply chain”.

The amendment seeks to broaden the scope of the Bill and to clarify and to introduce the ability of the regulator to consider competition issues and so-called cartel-like behaviour within certain sectors.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I oppose this amendment. The Bill is specific as to what are considered to be agrifood unfair trading regulations. These will concern business-to-business relationships in the agricultural and food supply chain, and the Bill provides for a range of unfair trading practices in that context. I am satisfied that the Bill is clear as to what unfair trading regulations are required to cover. Adding a reference to anti-competitive practices will, I believe, increase the scope to include powers that are wider than the agrifood unfair trading regulations provided for in the Bill. In particular, expanding the remit of the regulator to have power for anti-competitive practices defined in the Competition Act would lead to two competition authorities, with the possibility for duplication and overlap. This was not the intention of the Bill or the commitment in the programme for Government. If, however, during an investigation of an unfair trading practice, UTP, the regulator suspects there may be a suspicion of non-compliance with competition law, including anti-competitive practices, the regulator can and should provide that information to the CCPC.

I therefore oppose the amendment.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

This goes to the heart of our differences as to what the scope of the regulator could be. The difficulty is that, rather than duplicating any work, this body would be the first to engage proactively with anti-competitive actions in the agrifood sector because the CCPC has not done so to date, to be frank. This committee has heard a substantive amount of evidence in that regard from the farm organisations, the people who are at the coalface. This amendment seeks to ensure that the body, whether we use the Gaeilge or the Béarla version of the regulator's name, has to be able to address anti-competitive actions in the agrifood chain in order for it to meet the expectations farmers have put on the body to be able to bring fairness into the sector.

I will press the amendment.

Charlie McConalogue (Donegal, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We have comprehensive and detailed law in relation to the Competition and Consumer Protection Commission. We are introducing a new statutory office which will be transformative in relation to the food supply chain and bringing transparency to it. Deputy Carthy is putting cross-references into already comprehensive and complicated competition legislation by saying in an amendment that there would be a crossover without providing all the detail or the reams of legislation which would be necessary to make sure the whole thing would not fall down as soon as it met fresh air. It does not stand up to any scrutiny. We are introducing an office which will be effective on a statutory basis. What Deputy Carthy is doing has no standing in terms of legal solidity. I cannot accept it.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I will press the amendment for the reasons I have outlined and for the purposes of addressing the deficiencies identified in the implementation of competition rules. In the beef sector, in particular, cartel-like practices have been going on for decades. One of the commitments we were given was that this new body would be in a position to address that. It cannot address it unless the identification of anti-competitive actions is in its remit and that is the purpose of the amendment.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We are back in public session. We have to retake the vote on amendment No. 11.

Jackie Cahill (Tipperary, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I will adjourn the meeting now as we will not be able to the provide the Bill with the full debate it deserves.