Richard Bruton (Dublin North Central, Fine Gael)

That is the difficulty. It was not just this Attorney General but the Attorney General who advised the Senator's party in Government who took this view. We cannot decide that a certain behaviour is criminal and then say we are going to pursue it in a different way. That is the ultimate difficulty with the case for civil fines. Several people have quoted the EU and the IMF elements of the troika as suggesting that they are keen to see civil fines. Their more recent submissions have acknowledged not only that civil fines are not possible but that they endorse what is contained in the Bill. As we have developed the Bill we have included comments from the troika.

Senators Clune and Barrett raised the wider issue of competition policy as opposed to competition law. Both Senators credibly pointed to the fact that much of the anti-competitive provisions have to do with public policy rather than collusion or price-fixing or any other issue. Rules govern behaviour in certain sectors whether transport or otherwise. To take up a point made by Senator Leyden, we have not been too good at enforcing these changes. The momentum for implementing the Competition Authority's recommendations only gathered when the EU and the IMF came along. Reform in the legal and medical areas has gathered momentum and there are proposals in respect of the planning guidelines. We are examining the waste sector now and the need to have better competition rules there. There is still a mix of local authorities as both regulator and service provider at same time. This completely breaches the principles of competition law. We are mending our hand and it is more than a critique of our political system that our hand has been forced on this matter. To be fair, the late former Deputy and Minister, Seamus Brennan, was probably the odd man out because he leaned against the consensus in this area. However, he did not always get the greatest recognition for his efforts.

Several people have highlighted the need for more investigation of sheltered sectors and the issue of the resources of the Competition Authority. The recently published action plan for jobs includes an action for the Competition Authority identify areas in sheltered sectors of the economy where there are problems and to commission studies on them. New recommendations will be produced. While people rightly point out that there have not been many actions, in its recent annual report the Competition Authority commented on some of the investigations. Seven active investigations into criminal breaches of competition law are under way. Two of these include investigations into anti-competitive activities in the liquid milk markets and in the concrete and cement industries. People have concerns in these areas and the Competition Authority is investigating them.

Other people raised the point that while it was well and good and a good feature of this legislation that on the back of injunctions or actions taken by the Competition Authority civil actions can be pursued without having to establish proof in one's case, this will open up the door to more civil cases being taken whereby people can get compensation for the damage done to them. In a related matter, in many cases the Competition Authority settles before going the final step of prosecuting in the courts. We are creating a situation whereby if there is an agreement or settlement outside the courts, breach of that is, of itself subject to prosecution not as a breach of the Competition Act but rather as a contempt of court. This strengthens our ability and the ability of others to take follow-on actions in this territory. These changes will make a difference. I realise others, including Fianna Fáil Senators, believe there should be a great deal more but they have failed to acknowledge the steps being taken in this legislation. Fianna Fáil Senators have called for the creation of simple offences. Senator Byrne has called for this in particular. However, if Senator Byrne wishes to come forward with proposals there will be other competition legislation coming forward shortly.

I do not pretend to be an expert on this matter but in my experience it is not that the offence of price-fixing is complicated but rather, as Senator Terry Leyden suggested, it is difficult to prove collusion simply because prices are the same. These are different things. The act of collusion is the offence, not having the same price and a mere similarity of price does not constitute an offence. People should come forward with proposals by all means. We are developing a second competition Bill which will be before the House in due course and we are open to listening to suggestions.

Senator Burke raised several issues, including the effects of competition law. This is an area where the law is biting the tail of some people, in particular by preventing open negotiations on prices by an association of self-employed people. It represents a breach of the rules to come together to negotiate on prices. I understand that the former director of the Competition Authority came up with a formula by which certain negotiations could still proceed. It has been possible to continue to hold negotiations in this area without breaching the principles of the Competition Act.

It was interesting to hear Senator Feargal Quinn's comments on the ethics between the generations and people's expectations about the role of price and resale price maintenance. I remember when that became part of the legislation. This underpins that there are two sides to these stories and we are trying to pick a way between them.

I will welcome Senator Reilly's amendments. We can debate in more detail the issue of civil fines and the reason they have not been possible in Irish law. They have not been possible in many other areas as well. I understand that revenue is the only field in which civil fines have been deemed acceptable. Senator Reilly raised the issue of whether there should be a greater obligation to observe the recommendations of the Competition Authority. I agree that should be an obligation to respond and this should be done in a timely manner. However, as in the discussion on planning guidelines, people take other issues into account. Senator Reilly also remarked on the difficulty of town centre locations being damaged by larger out-of-town malls and supermarkets. Under the strict law of competition that is what should take place. However, other public policy issues must be taken into account. Senator Wilson commented on this as well.

Senator Michael Mullins raised the issue of the lack of convictions. I hope there will be more. Senator Mary White argued that the low probability of being caught is a problem. That is true. It is difficult to take a successful prosecution in this field. These are not easy cases to prove, of that there is no doubt. However, it is simplistic to dismiss increasing the penalties as if this will make no difference. Generally speaking, when one is calculating the effectiveness of measures in this area one multiplies the probability by the penalty and the result represents the deterrent. If we increase the penalty, even if we do not greatly improve the probability, we certainly increase the deterrent. Therefore, there is a benefit to increasing the fines. Their presence underpins the Senator's view and that of many others that we wish to see people in jail for these offences.