Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

I understand the point the Minister is making, but essentially we are giving the sole discretion to the Minister and we are taking away the power that the Competition Authority had. I accept what the Minister is saying, but even if we look at the role of Sky in our national sports in the last few weeks, there are many new cases which were not around when these committees made observations in the past. Media mergers, concentration of ownership and media power have increased enormously, as has the overall influence of media magnates on Irish society. Not only do they own media, communications and mobile phone networks, they are now also involved in hospitals so there must be some limit to monopolies and how much individuals can actually control in Ireland. The situation has been exacerbated in recent times, but this Bill is going in the opposite direction.

Another element of the Minister's speech that I oppose is in respect of the role of an ombudsman. One of my first questions would have been whether this Bill will be subject to freedom of information, and I do not see that it is. We will need clarification of that on Committee Stage. I believe the Government has given a commitment on this. Time after time, the Minister for Public Expenditure and Reform has stated that all new agencies will come under the freedom of information legislation, so I look forward to this Minister confirming that the Freedom of Information Act will apply to this new agency. It is not clear from this, but perhaps it is covered in some other legislation that will automatically bring it into being. Not only is the freedom of information legislation important, but so is the issue of an ombudsman. The public has lost faith in many institutions both in the public and private sector, but there is strong respect out there for the role of the ombudsman. There is no need for a separate ombudsman, but this organisation should be brought under the remit of the current Ombudsman.

There is an argument that we do not want a stand-alone agency, but it does not have to be a stand-alone agency in the current economic climate. It is claimed that for reasons of scarce financial resources, duplication with the enforcement of existing legislation on activities would not be feasible. I do not buy that. As we are in a time of scarce economic resources and because we have been in a difficult economic situation, it is all the more reason for being careful with how public bodies carry out their functions and deal with matters on behalf of the public. For that very reason, the Ombudsman should have a role and we will be putting down amendments on some of these issues on Committee Stage.

I would also like to highlight one of the fundamental flaws in the Bill that is specific to Ireland. The Minister states that in respect of "some issues not covered by the proposal, I would particularly refer to the disclosure of margins by retailers". The big boys have won again and the consumer loses out. I am talking about the big multinationals. I have heard the current and previous taoisigh refer to items they have had to discuss at Heads of State meetings at EU level. Some of that was about the role and strength of supermarkets across the EU and how they were strangling the producers. This is not just a matter in Ireland; the role of the buying power of key players is an issue in every EU country. Three or four people can determine the livelihood of thousands of producers in Ireland and across the EU. I understand these matters would have been raised at G8 meetings, such is the seriousness of the purchasing power of some of these major multinationals when it comes to setting prices for the producers so they can move on.

The Minister quotes EU company law and accounting standards, and I know that accounting standards require geographic details in respect of turnover, but the Minister does not want to go down the road of a disclosure regime in respect of the margin. I would say that there is a specific case for the island of Ireland when it comes to margins. Survey after survey shows the prices in supermarkets in Dundalk versus the prices of supermarkets in Northern Ireland, and the price of products sold by Boots pharmacies in the North versus the price of products sold by Boots across the country and in Dublin. Time after time we see schedules and lists published in the newspapers which show the different prices between North and South. I will not never accept that it is a different market. The response we get from all these multinationals is that the Northern Ireland market is part of the UK market and they have the economies of scale when selling to a population of 60 million, something that does not apply to a population of 4 million in the Republic of Ireland. Newry and Belfast are closer to Dublin than they are to London or Edinburgh, and I do not accept the argument being put up by these companies that they should not have to disclose their margins. When a company in England sources its products in England and sells into the market of the island of Ireland, it has different margins North and South of the Border.

That is not in the interest of people on this island. This legislation is failing the Irish consumer in addressing the different margins that apply and the purchasing power of the multiples. The Minister acknowledged in his statement that the legislation does not cover the proposal.

The Minister has left more out of the legislation than he has included. The Bill runs to 92 pages and admittedly has some excellent provisions, such as the setting up of a new agency. I have no problem with amalgamating two agencies and creating more efficiency, although the savings will be minimal because everybody has to keep his job, rights and entitlements and there will be contractual leases for buildings and other such arrangements. While there may be more efficiency in the longer term, which I support, the savings do not justify the introduction of the legislation.

The Minister stated there are three elements to the legislation. The first is the amalgamation of two agencies, which is good, although the savings for the public will be very low. Second, the Minister wants to deal with the issues arising between suppliers and retailers in the grocery sector. I have just explained how the Minister funked completely in this regard, and he refused to include sections in the legislation regarding the margins allowed on grocery products north and south of the Border. This has rendered the second part of the legislation very weak.

The third element concerns diversity and ownership across the media. The Minister is saying he will not deal with this either. In fact, he is to reduce the power of the Competition Authority in this regard. The Minister would be better calling this legislation a Bill to establish an agency to reduce the powers and protection of Irish consumers than what he has called it. Two fundamental issues are not being dealt with. The Minister has failed to deal with the media issue and the relationship between suppliers and retailers in the legislation.

I wish to highlight a problem concerning competition in the retail sector. Last Christmas, we all saw the queues outside some of the German supermarkets, such as Lidl and Aldi, where vegetables were offered for 50 cent or 5 cent - I forget the particular offer. Owing to the offers many people were cleaned out. We were all informed at the time that the next target was the meat industry. The supermarkets were to offer much reduced prices for meat and were thereby going to do fundamental damage to local butchers in all the affected towns.

There is a branch of every supermarket chain in my town, Portlaoise, and I check the prices in them all. Meat products in Lidl and Aldi are quite dear. I want that to be known because people believe there is great value there. The two supermarkets have good value on some items. These items are probably loss leaders but we do not know because they are German or from elsewhere in Europe. They are not the traditional products we are used to. The price of 1 kg or 0.5 kg of any meat in Lidl and Aldi is certainly no lower than in any other supermarket. I wish to knock on the head the view that some of the products are good value.

The substantive issue with which we need to deal is below-cost selling. My main complaint about below-cost selling, on which I have a certain view, concerns how major supermarkets can sell alcohol below cost. This issue needs to be dealt with aggressively because teenagers, including 14-year-olds and 15-year-olds, are getting beer for under €1 per can. There was a time when one almost tripped over the pallets of beer when going through the front door of some supermarkets. While I accept that alcohol products are now segregated, this does not stop the drink getting into the hands of young teenagers, perhaps because it is purchased by older friends or family members. The main reason is that the drink is being sold at such a cheap price. There is a case not only for dealing with below-cost selling but also for imposing a new tax on alcohol sold in off-licences at such a low price. Below-cost selling is adding to the binge-drinking culture. Many difficulties in the health service arise from this over time. The serious impact is not being dealt with.

When a supermarket buys containers of drink to sell below cost, it gets a VAT refund from the Government. This is absurd. Not only are supermarkets destroying the young population by making the drink so readily available, they can in turn get a VAT refund because they sell below cost. The matter is very simple. If a supermarket sells a can of beer for €1, it includes VAT, but if €1.20 is paid for the can of beer, including VAT, the purchase cost is higher than the sales cost. Therefore, when the supermarket submits its VAT return on the beer it is selling below cost, it actually gets a VAT refund on the loss. This is morally wrong and should not be allowed to continue. It is doing immense damage. These are the issues with which we should be dealing in regard to competition and below-cost selling when dealing with this legislation.

I have referred to various aspects of the legislation and wanted to highlight matters that the Minister referred to in his opening statement before making my points on the legislation. There are some good points in the legislation but most of the good points that should be in it have been omitted. It is welcome that there is a new criminal investigation function. We need to ensure that the watchdog will have real teeth. We have grave concerns that it will not. When we consider some of the bodies with powers of prosecution, including the Office of the Director of Corporate Enforcement - I do not refer here to the Garda - we realise court cases are very rare. It is important that this matter is being dealt with.

Where anti-competitiveness issues are concerned, the biggest culprit is the State itself. The Government is setting up Irish Water, which I will not discuss in detail. The Government is to set the price of water for every business in the State, and it will probably be different from the current price. Non-commercial consumers will have to pay also. There will be an additional cost on business considering that current rates vary from county to county because they are set at local authority level. Irish Water is to have a turnover of €190 million this year from the commercial customers it has taken on from the local authorities. I assume that if there is one national agency, a litre of water will be the same price in Dublin as in Cahersiveen. It would be very absurd if different prices were charged by Irish Water in different counties, as happens at present. Some commercial customers may gain but some will be paying higher rates for water than they have been paying to date. The general public will have water meters installed in their houses as the year progresses and they, too, will have to pay. The Minister is adding to the cost of business. This is one of the difficulties we have with everything the Government is talking about. It wants to talk about competition but it is making sure, through a lack of competition, that it does nothing to bring prices under control.

The questions of legal reform and the medical profession must be taken into account. On the grocery business, while "hello money" was banned many years ago, a new regime in now in place whereby retailers charge suppliers for marketing and promotion. The supermarket tells the supplier it is going to mention his or her product in a television advertisement but that he or she must pay for it. This is anti-competitive. We know well what will happen if the supplier says "No"; he will not be a supplier the following week. Companies and big buyers can abuse their dominant position in Ireland, and we want to see this rooted out.

The Government is one of the significant contributors to high costs, and this distorts competition. If the cost of doing business in Ireland is higher than elsewhere, it makes it much more difficult for our businessmen to compete with those in other countries. Our electricity cost is among the highest in the European Union. There is a hotchpotch approach to waste disposal throughout the country. It is becoming more expensive as the years go by.

In addition, the interest rates charged for small businesses are excessive when compared to many other European countries. The cost of other services, such as postal and transport services, is also increasing and the new carbon tax is another initiative that will add more costs onto Irish businesses and make them less competitive in the international market. The Minister brings forward this competition legislation today yet his Government is making it more difficult for these businesses, which are employing Irish people, to compete abroad.

One area where there is not sufficient competition is that of broadband, where everybody talks about the lack of services. In coming from my constituency today on the main motorway, I twice lost mobile phone calls on my hands-free Bluetooth set because there was not sufficient mobile phone coverage. In my constituency office, my mobile phone signal is not adequate. I do not know what the mobile phone companies have been doing in recent times but I say categorically that the quality of the mobile phone service has deteriorated in certain parts of the country and the broadband service is also at a very low ebb in many areas. There is not sufficient competition in those areas and it would be far better to force those companies to provide a proper service to their customers than to pass this legislation, which leaves out more than it includes.

With regard to competition, I see a major lacuna in the legislation which goes back to the question of why we have the Competition Authority. This reflects a particular right-wing ethos whereby competition in king. Competition is not always king. The idea that we cannot have people negotiating collectively as this would distort competition is a bad thing because that is not necessarily the case. The Government cannot now negotiate properly with the IMO in regard to the contract with GPs because it would be deemed to be in breach of competition legislation. We had the same argument in regard to the pharmacy organisations some time ago, when we were told negotiation would be anti-competitive. I remember this issue coming up in a debate in the past. I am convinced that the EU legislation which states that competition is king also provides, when it comes to the health service, that competition issues can be set aside. We in Ireland have been weak in enforcing that aspect of the legislation.

We have not tackled the issue of competition in the legal profession. There is a cosy relationship between the legal profession and this House. I believe it has been too cosy and that there has been too much influence here. The troika came here for three years and the legal profession prevaricated about the need to reform itself. It was said there was so much other legislation, and that the draftsman's office, the Government and the Attorney General's office would have to be involved, so they never got around to reforming the legal profession. The troika is now gone, three years on. The legal profession won and the people of Ireland lost.

The case I would cite in all of this is that of the State Claims Agency, which currently has on its books claims that the agency maintains will cost some €1.2 billion to settle - these are the figures produced in its annual report. Out of that €1.2 billion, however, approximately €500 million is for legal fees. This is the biggest element in many cases, where the legal fees are greater than the cost of settling the cases. The Minister is presiding over a situation where barristers can, by and large, get €500 million from the State Claims Agency over the next couple of years and there is no real competition.

I am not talking about internal competition among a few buddies dropping €50 an hour, or about the Attorney General setting a rate. Anyone who thinks that is where the debate is at does not understand the issue at all. Legislation has to be enacted that will allow the State Claims Agency to employ its own barristers, and that legislation must allow those barristers who are employees of the State Claims Agency on a fixed annual salary to represent the State Claims Agency in court. I know the legal profession will do a song and a dance and say a barrister is a self-employed person. However, hospital consultants can say the same but they still work for the HSE under contract, and we have dealt with the issue of the indemnity insurance of hospital consultants. All of those issues can be dealt with. A barrister cannot make a greater case that he is a self-employed professional than a consultant operating in a hospital. If we have solved it with the consultants on the medical side by bringing them under contract into the HSE, we must and should do the same with the legal profession when it comes to handling these issues. The tribunals have closed and the legal profession has now moved on. The new gravy train is the State Claims Agency. There is €500 million sitting there to be paid out by the Irish taxpayer on State Claims Agency claims in the coming years.

I want to deal with some aspects of the legislation, although it is unfortunate that some issues that should form part of the legislation have been omitted by the Minister. As I said, the Ombudsman and freedom of information should have a role on this issue. I also want clarification, when the Minister is summing up, on the role of this new competition and consumer protection agency in respect of Irish Water and whether it will look after the interests of the consumer in that regard. I understand the commission will itself be able to initiate prosecutions. I hope it is aggressive when it needs to be in order to do that.

Section 10 deals with the membership of the commission. It states that members will be eligible for reappointment on a temporary basis by a Minister for an aggregate period of not more than 12 months, where vacancies arise. How many times can a person be reappointed? There are generally fixed terms of five years under the new legislation. Can a person have two or three five year terms? The Minister might spell that out.

On section 17, if it comes to prosecutions I agree there needs to be co-operation between other regulators such as the Commission for Aviation Regulation, the communications regulator, the energy regulator and the Health Insurance Authority. While I welcome that, when the legislation is going through the Dáil, the Minister might provide examples of how those arrangements will work and any legal and constitutional barriers that exist in other legislation that would prevent those organisations coming to agreement with this new commission. I have seen this arise before. There are regulations in place to deal with a situation where, for example, the Director of Corporate Enforcement wants to investigate a matter in regard to the banks and he might have information that is relevant to the Revenue Commissioners or the Financial Regulator. While, in some cases, the Director of Corporate Enforcement can pass his information back to the Revenue if he deems it relevant, Revenue is slightly more restricted in what it can pass to the Director of Corporate Enforcement. Arrangements need to be set up in this regard. My question is whether there will be an equal transfer of information or whether it will be substantially a one-sided transfer of information. We are dealing with several other pieces of legislation, for example, in regard to health insurance, and there may not be the exact same provisions in other legislation allowing for this transfer of information.

Section 24 outlines that the commission will report to the Committee of Public Accounts, which, it goes without saying, is a good thing, and everybody supports that. However, I have an issue with section 25, which deals with the accountability of the chairperson to other Oireachtas committees. My concern is that the section states:

The chairperson of the Commission shall not be required to give account before a Committee in relation to—(a) any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State...

I fully agree that the chairman of this new commission, if appearing before the relevant Oireachtas committee, should not be required to give information in regard to a matter that may be in the future or is currently the subject of proceedings before a court or a tribunal. However, I have a problem with the suggestion that he or she may not give evidence in regard to a matter that has been before the courts and is completely disposed of. The public might want to know why the chairperson took a particular line in those court proceedings. There might be a question as to the cost of those court proceedings and whether they might have been done in a more efficient manner. To say that matters that have been disposed of in the courts, which are matters of public record and where the costs can probably be established through the Courts Service if it comes to that, cannot even be discussed by the chairman with the relevant Oireachtas committee is to go a little too far in terms of past matters. This should not be in the Bill.

If the commission does not want to be pursued on a line of questioning, it has the right to go to the High Court within 21 days and seek a declaration from that court.

Perhaps that is standard procedure for regulators and bodies like this. I am not sure. I am not a solicitor but I just asked the question and the Minister can give the answer. Is that a normal section of legislation or are we now issuing a new invitation to the High Court to interfere in Oireachtas committee proceedings? Perhaps it is the standard procedure that applies to all such bodies but section 25 invites the commission to go to the High Court within 21 days and states that the High Court shall determine whether or not the person should answer those questions. If the High Court determines that they should not be answered, the committee will not be allowed to follow that. If the High Court determines that they should be answered, the commission must answer those questions. This runs counter to practice relating to a committee where we set up fair procedures. That section is written by officials in the Department and essentially states that the Oireachtas committee must do its job with fair procedures. That section is an indictment of Members of the Oireachtas who are capable of operating lawfully within their own procedures that have been laid down here.

The last section I want to deal with is section 31, subsection (3) of which concerns whistleblowers. There is a fundamental contradiction between this legislation and the whistleblowers legislation being introduced by the Minister for Public Expenditure and Reform. The essential difference is in subsection (3), line 15 where it states that it is essential that an employee making an allegation acts reasonably and in good faith in forming the opinion and in informing the commission. This issue of good faith has been taken out of the whistleblowers legislation because many people have a legitimate gripe and want to complain about something they are sore about. Just because they are sore and may not be lodging their objection in good faith does not mean they do not have a valid objection. The whistleblowers legislation has removed that requirement and states that an objection is valid regardless of why it has been made. The Minister for Jobs, Enterprise and Innovation is now compromising valid objections by including that clause which flagrantly contradicts the whistleblowers legislation being introduced by the Minister for Public Expenditure and Reform.

It is good to discuss this legislation. Unfortunately, the Minister for Jobs, Enterprise and Innovation has left more out of it than he has included. We will discuss it further on Committee Stage.

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