John Perry (Sligo-North Leitrim, Fine Gael)

I thank all Deputies who spoke on the Bill for their very useful contributions to the debate. First, I welcome Deputies' broad expression of support for the content of the Bill. I also look forward to examining the amendments that Deputies indicated their parties will propose on Committee Stage and which the Minister, Deputy Bruton, will certainly consider. I remind Deputies that the focus of the Bill is to strengthen the enforcement of competition law by providing a more effective deterrent and an improved sanctions regime. However, a number of other interesting points have been made. I will certainly study them and give them serious consideration in the context of other legislation being prepared, where relevant.

A number of Deputies, including Deputy Pringle, raised the issue of civil fines in their contributions. As indicated by some Deputies, the Competition Authority did indeed call for court-imposed fines as a remedy in civil proceedings to be taken by it in respect of certain breaches of competition law. However, in calling for such fines to be introduced, the authority recognised there were constitutional difficulties with the concept. In effect, what was being requested was that certain criminal breaches of competition law, which are currently criminal in nature, would be decriminalised but the breach would continue to attract very substantial and punitive fines. The balance of proof in such proceedings would then be the lower standard, that is, on the balance of probabilities, whereas in a criminal prosecution the Director of Public Prosecutions would be required to prove the breach to the high standard, that is, beyond reasonable doubt.

However, the concept of civil fines espoused by the Competition Authority is not provided for in Irish law in any sector, and I am advised by the Attorney General that providing for such fines would pose legal difficulties having regard to Article 38.1 of the Constitution which provides that no person shall be tried on any criminal charge save in due course of law. In the scenario outlined by the authority, the infringements and the penalties attached would stay the same. That being so, the courts would consider the infringements to be criminal, thereby requiring the protections afforded by Article 38.1 to be given to an accused. Thus, based on the advice from the Attorney General, civil fines were not included in this Bill.

Similar opinions were expressed by the previous Attorney General and these are shared by many practitioners and members of the Judiciary. The Competition Authority has also now accepted that the introduction of civil fines is not feasible, and it has been actively working with me and my Department on strengthening sanctions and penalties under competition law through the means being proposed in this Bill.

Some Deputies also raised the issue of the impact of the current legislation and the effectiveness of the Competition Authority. Since 2000, the authority has secured an impressive total of 33 criminal convictions. In the area of civil actions, it has won two cases and settled another three out of court. It has also issued a series of market studies on areas such as the professions which is helping improve competition in those areas for the benefit of the economy as a whole. The issue of sentencing is a matter for the courts in the first instance. While no one has been imprisoned for committing a competition law offence to date, it is notable that the courts have moved a long way towards the imposition of custodial sentences. In the Duffy case, Mr. Justice McKechnie expressed regret that due to the need for parity of treatment of offenders, he was precluded from such a custodial sentence on account of a previous decision in respect of the same offence. However, he stated that he saw "no room for a lengthy lead in period before jailing convicted persons becomes commonplace under this legislation". This view, taken together with the signal that the Oireachtas will send out by the adoption of the proposed measures, will undoubtedly lead to the imposition of custodial sentences in the future.

Deputy Tóibín raised the issue of the response to the various Competition Authority recommendations from such market studies. Of the 174 recommendations made to date, more than 120 have been considered and addressed by Government. Those remaining are still under consideration by the relevant Ministers, approximately 20 of which will be addressed in proposed legislation relating to the legal and medical professions. Thus, it is not the case that the excellent advocacy work by the authority is being ignored by Government.

A number of Deputies raised the issue of practices in the grocery goods sector. The programme for Government contains a commitment to enact legislation to regulate certain practices in the retail sector. Deputies may recall that in advance of legislating for the introduction of a statutory code of practice in the grocery goods sector, a facilitator was appointed to explore with stakeholders the possibility of agreeing a voluntary code of practice in the sector. Unfortunately, despite the best efforts of the facilitator, it was not possible to secure agreement on the development of a voluntary code. In light of this, the Government intends to give effect to the commitment in the programme for Government by including an enabling provision in the legislation to merge the NCA and the Competition Authority, which will allow for the introduction of a statutory code of practice to regulate practices in the grocery goods sector.

It is expected that this legislation will be published in the first half of 2012. In advance of the publication of the legislation, my Department published an outline draft code prepared by the facilitator as part of the facilitation project. Interested parties were invited to submit their views on the outline draft code and its provisions. The responses to this invitation are currently being considered in the context of framing the legislation to give effect to the commitment in the programme for Government.

I refer to two other issues raised in the debate. First, dominance, per se, is not an offence under competition law; rather, it is the abuse of any such dominance that constitutes an offence. Second, the Competition (Amendment) Act 2006 prohibits certain practices such as demanding "Hello money". The Government is strongly committed to ensuring Ireland continues to have vibrant agrifood and retail sectors, particularly given the importance of these sectors to the economy. The Government considers it important, therefore, that there should be a balance in the relationship between the various players in the grocery goods sector. The introduction of a code of practice is intended to achieve such a balance, taking into account the interests of all stakeholders in the grocery goods sector, including the interests of the consumer and the need to ensure that there is no impediment to the passing on of lower prices to consumers.

A number of Members raised the issue of not applying the provisions of the Probation of Offenders Act 1907 to offences under sections 6 or 7 of the Competition Act 2002. Breach of competition law, particularly hard core conduct such as price fixing and other cartel behaviour, constitutes serious white collar crime and does not constitute "minor offences". The reference to offences of a "trivial nature" in the Probation of Offenders Act 1907 could not be considered to apply to such hard core offences. The proposal to not apply the Act sends a strong signal to potential offenders that certain competition law infringements are recognised for the serious white collar crimes that they are and that they will be sanctioned accordingly. This is consistent with the message on white collar crime in the Criminal Justice Act 2011.

I am aware that the Competition Authority, as the statutory independent body responsible for enforcing competition law in the State, has received information relating to alleged anti-competitive behaviour in the concrete industry. The Competition Act 2002 provides that the authority is independent in the performance of its functions. Under that Act, it is responsible for investigating breaches of the legislation. As investigations and enforcement matters generally are part of the day-to-day operational work of the authority, I have no direct function in the matter and it would be inappropriate to comment on any of its investigations.

Deputy Dowds raised certain practices engaged in by insurance companies. I remind the House that the regulation of the insurance industry is primarily a matter for my colleague, the Minister for Finance. I understand that the arrangement between insurance companies and approved repairers appears to be one where approved repairers are selected on the basis that they meet various qualitative standards with the approved repairer in return being guaranteed a minimum flow of work. The Competition Authority is aware of the practice and has previously advised my Department that such arrangements do not appear to breach competition law and appear to result in a more cost effective service being provided to the public.

A number of issues relating to the Competition Authority were raised by Deputies. Like all State bodies, the resources of the authority are kept under review in the context of the overall strictures applying to public sector numbers as a whole. On the issue of how it handles complaints, I understand that the authority operates a triage-type system to prioritise its work. Members may not be aware that the authority has published an informative series of booklets, both in hard copy and on its website, giving information to both consumers and business on the issue of competition law.

A query was raised about representative bodies being prevented from taking actions on behalf of consumers. However, representations can be made by the NCA, which can pursue action under section 81 of the Consumer Protection Act 2007 on behalf of affected consumers.

On the issue of alcohol abuse and substance misuse, the Minister of State at the Department of Health, Deputy Shortall, will issue a report on substance misuse shortly. This will deal with this issue, which is a concern for many people.

I thank Deputies who contributed to the useful and informative debate on this Bill. I look forward to constructive engagement on Committee Stage on the detail of the proposals in this Bill.

See this speech in context