Michael McNamara (Clare, Independent) | Oireachtas source

I move amendment No. 17a:

In page 11, after line 33, to insert the following:

“Power to require information

13. (1) The regulator may, by written notice (referred to in this section as an “information notice”) served on a person in the agricultural and food sector, require the person to give to the regulator, within such period and in such form as may be specified in the notice, any information specified in the notice that the regulator may reasonably require in performing its functions.

(2) The period specified in the information notice under subsection (1) may be extended at the discretion of the regulator on the written application of the person on whom the notice is served.

(3) A person on whom an information notice is served under this section may, within 7 days beginning on the day on which the notice is served on him or her, appeal in the prescribed manner against the notice to the High Court and in determining the appeal the High Court may, if satisfied that it is reasonable to do so, confirm, vary or cancel the notice.

(4) Where, on the hearing of an appeal under subsection (3), a notice is confirmed or varied, the High Court may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case it considers appropriate.

(5) A person on whom an information notice is served shall comply with the notice before the later of— (a) where no appeal is made against the notice under subsection (3)—

(i) the end of the period for bringing an appeal under that subsection,

(ii) the end of the period specified in the notice for the purpose of giving the specified information, or

(iii) where the period referred to in subparagraph (ii) is extended under subsection (2), the end of that extended period,

or

(b) where an appeal is made and the information notice is confirmed or varied or the

appeal is withdrawn—

(i) the day following the day on which the notice is confirmed or varied or the appeal is withdrawn,

(ii) the end of the period specified in the notice, or

(iii) where the operation of the notice has been suspended in accordance with subsection (3), on the expiration of the period that the High Court considered appropriate for the purpose of that subsection.

(6) Where a person fails to comply with an information notice made by the regulator under this section, the regulator may on the expiration of the period set out in subsection (5) apply to the High Court for an order requiring the person to comply with the information notice.”.

To return to what I said earlier, it is a potential deterrent that a failure to provide information may be a criminal offence. It could be a criminal offence if all the hoops have been jumped through. It is a cumbersome procedure because regulation has to be made and must specify it as a criminal offence. Off the top of my head, I recall from our discussions when last we debated this Bill that there is a further hoop to be complied with in advance of which criminal prosecutions can be taken. That is great, but it is unusual for a regulator not to have any civil power to obtain information. This Bill is all about obtaining information, in particular where there is a lack of clarity at the moment. There is a fair degree of clarity in terms of what primary producers are being paid and what consumers are paying but there is no clarity in between. Whether this Bill succeeds or fails will be on the basis of what clarity, if any, it brings to bear on the commercial relationship between processors and retailers. It is all well and good to say we have the power to make a regulation requiring the provision of some information and making it a penal provision and compellable. We can do all of that and legislate to the effect that it may be an offence if a body corporate, which may or not be based in the State, does not provide the information. In such a case, the regulator could then move to take a criminal case. However, it is incredibly cumbersome and is likely to tie up the regulator's resources.

I propose that in tandem with that, the Minister would allow the regulator to seek certain information.

Essentially, this would enable the regulator to require the person by written notice, referred to in this section as an information notice served on the person in the agricultural and food sector, to give to the regulator within such a period and in such form as may be specified any information specified in the notice that the regulator may reasonably require in performing its function. The period shall be set out. A person on whom the information notice is served may, within seven days beginning on the day on which notice is served on him or her, appeal in the prescribed manner against the notice to the High Court and the High Court would have the power to confirm, vary or cancel the notice and, obviously, suspend the operation of the notice for such period as in the circumstances of the case it considers appropriate. Otherwise, the person shall comply with the notice before a particular date and where the person - of course, "person" includes legal or natural person and, therefore, companies - does not comply with the information notice, the regulator can go to the High Court ordering the provision of the information.

It is a much faster, snappier way to get the information. It is all well and good to say we have criminal deterrents, and I welcome the amendment as it considerably strengthens the Bill, but it still is incredibly cumbersome. It will take a very long time. This is a much snappier way for the regulator to get information. I would urge the Minister to consider this. If the Minister is not prepared to consider it for today, I would urge him to at least give a commitment to look at it for the Seanad - I appreciate it has come very late in the day - because it is about making sure this regulator has the powers to perform its function.

The key power the regulator needs is the power to get information that is not in the public domain that will not be readily handed over. Tesco, SuperValu, Lidl, Aldi or anybody else - Carrefour, Waitrose, etc. - who might come into the Irish market at some point in the future will not hand over any information they do not have to hand over. ABP, Dawn, Queally and any of these companies will not give any. It is fair to say they have made a huge success of their businesses but they have not done so by being soft touches. They certainly are not giving out information. There is very little information. I do not know if the Minister has much but I know farming groups have been calling for it for years and getting very little. Consumer groups are calling for it. There is very little information on the relationship between the processors and the retailers.

If this regulator is able to get that information, it will be a success because it will be able to shine a light on where the profits are being made. If it is not able to get that information, it will inevitably fail. It can mount whatever criminal prosecutions it wants, but it will not change the fact it does not have the information required to do its job successfully. That is the purpose of this amendment.

The amendment is based on existing provisions in law, particularly the health and safety Act but also, with regard to the power to go to the High Court, on the civil aviation regulator which has that power. I do not know whether the latter power is utilised often, but if it is not utilised often, I dare say it is because the power exists.

Of course, it may be that somebody will say the regulator does not have the power or that the information the regulator is seeking is not properly set out in the statutory instruments that are made, but if that is the case, at least there is a speedy mechanism to do so because a person has to go to the High Court within seven days of getting the information notice and a new statutory instrument can be made curing any deficiencies. What is accepted at present is a cumbersome criminal prosecution that will trundle on for years, as criminal prosecutions must to ensure fair procedures, due process, etc., and then maybe find out that there was some inadequacy in the statutory instrument.

To reiterate, it is a snappy way to get information. It does not criminalise anybody but it will give the regulator the power to get the information I believe it needs. We all believe it needs information. That is why the office is being set up.

I urge the Minister to accept the amendment or at least to look at it further. If the Minister will not accept it today, I ask him to at least give an undertaking to look at it further in the Seanad.

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