Michael McNamara (Clare, Independent) | Oireachtas source

I commend the Minister on indicating he will accept the amendment. It is of considerable importance that the Bill, as previously drafted, has been beefed up somewhat, if he will pardon the pun. The Bill states the regulator shall "collect, analyse and regularly publish reports" and the amendment adds to section 12(3), under the line "In pursuance of its duties under this section the regulator may, in particular," the function that "the regulator shall be authorised to seek from businesses within the agri-food supply chain any data impacting upon price and margins considered necessary". The Minister has made minor amendments to those provisions, while retaining their essence, given they will still include the word "margins".

I do not know how we will verify this margin or how it will work in practice. Not to be sexist about it but these major retailers and beef processors are robust characters that will be well armed, and they readily resorted to the courts when there were pickets outside their factories a couple of years ago. They will equally resort to the courts just as readily against the regulator if it asks them for information they do not want to provide and if they think there is a way out of them having to provide it. It is quite clear they will not want to provide that information, although providing just the margins will be somewhat less unpalatable to them than would be providing the actual prices, given the word "margin" is not defined in law and I do not think the Minister proposes to bring in a definition. It is a loose term that would benefit from elaboration in the Seanad.

Likewise, what will happen if these retailers or processors say, "Thanks a million for the request but you can go whistle for it"? The Minister deals with that issue in amendment No. 25 to section 80, on enforcement and supplementary regulations. Section 80 states:

The Minister may by regulations make such provision as is necessary or expedient for the purposes of this Act.

... Without prejudice to the generality of subsection (1)... the collection of price and market information to address issues of lack of transparency and information asymmetry in the food supply chain ...

To that section, amendment No. 25 will add the line “(which may, in particular, include provision allowing the regulator to compel the provision of information referred to in section 12(3)(d)”.

Section 80 goes on to refer, in subsection (5), to a "person who contravenes or fails to comply with a provision of regulations made under this section that is specified in the regulations to be a penal provision" and states that such a person "commits an offence and is liable, on summary conviction to a class A fine". Again, I suspect the Minister has not specified in the Bill whether the definition of "person" includes legal persons as well as natural persons, although I suggest he do so. The regulator is not going to be writing to any specific person but to a company, and there is the issue with criminal offences committed by companies and how to prosecute them.

Often, the penalty is relatively meaningless. In this instance, it will not be a person who will be asked for the information but the likes of Tesco, SuperValu, Lidl Ireland, ABP or Dawn Meats. If all that can be done is the issuing of a class A fine, that will be utterly irrelevant to the turnover of any of the companies I mentioned or any of the major operators in the retail chain, and that is if it can even be done. Before there is any possibility of a class A fine, however, regulations will have to be made setting out the information to be required and "margin" will have to be defined. Can that be done in regulation if it was not done in the primary legislation? Perhaps. The company will then have to refuse to comply and there will have to be specific compellability around the regulations.

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