Richard Bruton (Dublin North Central, Fine Gael) | Oireachtas source

These two amendments essentially propose the same thing albeit in a different manner, that where a grocery goods undertaking chooses to enter into a contract with the relevant grocery goods undertaking, the latter must have a contract with the former for the supply of grocery goods. I note a difference in the legal framing of the amendments tabled by Deputies Tóibín and Calleary. Deputy Tóibín’s amendment seeks to include this provision under the list of activities from which the regulations foreseen by the Bill will be drawn up, while Deputy Calleary’s proposal is to make it obligatory outside the regulations as a stand-alone measure.

The provisions of the Bill state on page 84, section 63B(2)(a) that the regulations "may specify the form of the contract that would be entered into by the parties". While I do not want to pre-empt the final regulations, this section is pivotal to trying to ensure that situations such as unilateral amendments to terms, retrospective changes to terms, etc., are covered by the regulations. Without a written contract in place, it would appear to be impossible to enforce any regulations on issues such as unilateral amendments to terms, retrospective changes to terms, etc. It is worth noting that the issue of written contracts is a core part of the UK code of practice for this very reason.

As regards the suggestion that grocery goods undertakings could decide not to have a contract, this would have the practical effect of the grocery goods undertaking having no protection under the regulations. I am not sure if that is what the Deputies intended in their proposals. There is always the possibility that the proposal could have the effect of a grocery goods undertaking being coerced into opting out of contracts by relevant grocery goods undertakings. This would leave grocery goods undertakings having no protection under the regulations.

Since Committee Stage the Department has received confirmation from the Irish Farmers Association, IFA, that it no longer wishes to pursue such an amendment. For all of these reasons I am not convinced that this is a good idea and thus am not in a position to accept the amendments. At the heart of the proposal is having a contract and if it is permissible to contemplate an opt-out there is a very real risk of coercion. The contract is the document which is the instrument of enforcement. It would be counterproductive to go with the proposed amendment.

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