Private Members' Business. - Enterprise (Competition and Consumer Protection) Bill, 1989: Second Stage (Resumed).

Wednesday, 15 February 1989

Dáil Éireann Debate
Vol. 387 No. 2

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[472] Question again proposed: “That the Bill be now read a Second Time.”

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Deputy Flood in possession and he has 15 minutes left of the time allotted to him.

Mr. Flood: Information on Chris Flood  Zoom on Chris Flood  I was about to contribute to the debate last night when we had to adjourn. The Bill, although raising fundamental issues of importance in relation to anti-competitive practices and restrictive practices in the Irish economy, is somewhat premature. I suppose I could be criticised for making this statement if nothing was being done by this Government on matters referred to in the Bill.

However, the record of this House shows that the Minister, during the debate in the Dáil on the Restrictive Practices (Amendment) Act, 1987, gave a commitment to have the Fair Trade Commission carry out a full investigation on the merits or demerits of a system to regulate competition on a basis which was similar to that contained in the Treaty of Rome under Articles 85 and 86. This system is generally taken as a prohibition system of control.

The proposed Bill would render useless, to some extent, the work already carried out by the Fair Trade Commission in the investigation to which I have referred. In March 1988 the commission sought submissions from those interested in this subject. I understand that the commission in their study must also have regard to the constitutional question which might arise in the matter of granting the Fair Trade Commission judicial powers similar to those already invested in the EC Commission. The study also involves the consideration of many other questions. The EC Commission approach is that this is a prohibition system as enshrined in Articles 85 and 86. The current Irish approach to the problem, as enshrined in current legislation, covers competition control under [473] the control of abuses of the system. Articles 85 and 86 deal with competition between member states in their particular trading relationships.

In Ireland the control of trade practices is governed essentially by the Restrictive Practices Act, 1972, as amended by the Restrictive Practices Act, 1987. Mergers, takeovers and monopolies are also governed by the 1978 Act and are covered by the Restrictive Practices (Amendment) Act, 1987. Over the years as well as the Acts I have referred to, in the Irish context, many ministerial orders have been made covering a whole range of areas such as groceries, carpets, motor spirits, jewellery, motor cars, radios, cookers, electrical equipment, building materials etc. This is a fairly extensive volume of Irish competition law notwithstanding all this legislation which is very important and which has been widely used in the context of competition and fair trade control.

While we are awaiting the results of the study by the Fair Trade Commission, the Government have been pushing ahead with their own legislative programme to ehance national competition legislation. The Restrictive Practices (Amendment) Act, 1987, is an important example of this type of legislation. What would concern me at this stage about the introduction of the prohibition system would be largely in the area of control and organisation. I question whether the costs involved might not in themselves be prohibitive so far as any particular industry was concerned if one was passing on the cost of establishing a particular system directly to the customer. If we were not passing on the cost the State would be expected to carry the cost of the organisation to control the anti-competitive practices and restrictive practices enshrined in a prohibition system. I am not sure that that is a road we should go down.

From what I can glean from my study of the EC experience in this regard, it has led to the establishment of fairly substantial organisations to try to patrol the system. So far as the prohibition system is concerned, considerable delays have taken place in the system responding to contacts from industries throughout the [474] EC. In some cases the system was unable to respond quickly enough to the demands from industry or from those seeking a response from the organisation handling a particular issue. The organisations were compelled to try to catch up with the backlogs by extending block clearances, letters of comfort, etc. This suggests that the prohibition system is not necessarily the best system, although I accept that the Minister in setting the Fair Trade Commission to investigate both types of systems will take on board the findings of the commission when they report on what is a fairly crucial issue at present.

To proceed now with this Bill would be premature because the Fair Trade Commission are investigating a very important issue. We all accept that competition is the lifeblood of an economy such as ours. Ours is an open economy and in 1992 it will be subject to greater competition from outside and will have to be able to withstand the fierce onslaught that will undoubtedly come. While open competition has beneficial effects, we should not get carried away and say the ideal situation is an absolutely open competition market without any controls or mechanisms to protect sometimes the consumer and sometimes the supplier of the goods or services involved.

In setting guidelines for prices I am not sure it is always a good thing to say to part of the economy supplying particular goods or services that competition should determine precisely the price structure. Sometimes that is not necessarily in the best interests of the consumer. I will try to explain the reasons. If a service is being provided by a particular organisation, and because of the intensity of competition prices are lowered, sometimes the net effect of that competition is to cut corners. Cutting corners to provide cheaper services such as cleaning or even the fire service — can very seriously affect the consumer.

One can sometimes be so exposed to competition that in order to stay in business one has to lower prices consistently and one can only go down so far before something begins to give way either in terms of service or in terms of the job one was paid to do and in the end the [475] consumer can pay a heavy price for the continuous downgrading of the price structure. Sometimes it is as well for the public to know that they can obtain a particular product or service at a specific price and below this price alarm bells should ring regarding the product or service they are getting. In that regard it is sometimes better to have control mechanisms in position in order to ensure that the consumer does not completely lose out in the free economy we have in this country and which sometimes can be to the benefit of the consumer.

Control of abuse in this area is very much strengthened by the Restrictive Practices (Amendment) Act, 1987. This allows the Director of Consumer Affairs and Fair Trade to delve into some of the areas that have caused consumers concern over the years. The 1987 Act strengthens the hand of the director and has put on notice in a substantial way the suppliers of goods and services who perhaps until recent times felt they had a free hand in so far as costs and prices were concerned. There is sufficient legislation, but that is not to say that improvements are not continuously called for and that the strong hand of the Minister of the day is not sometimes required in matters of this kind, as we have seen fairly recently. I would prefer to see the line being taken in the direction of strengthening the existing legislation in view of the work being carried out by the Fair Trade Commission. I would prefer that we would await their report and then make our decision on whether we continue with the control of abuse or take on board the EC Commission's prohibition system. There are merits and demerits on both sides. The issue is important for the economy and will become increasingly so. Although the Bill genuinely raises issues we must keep before our minds, it would be wiser to wait until we size up all areas that will impact on the economy in the years ahead. Arising from reports from the Fair Trade Commission and debates such as this, the fundamental job ahead is to decide whether we choose the existing system or the one which presently pertains in the EC Commission.

[476]Mr. Spring: Information on Dick Spring  Zoom on Dick Spring  I would like to make some brief remarks on this debate. I deplore the attitude expressed by the Government in recent days with regard to the use of Private Members' Time and particularly the remarks made by the Minister for Industry and Commerce. His suggestion that smaller parties in this House should not be allowed bring forward legislative proposals and his view that only the Government have the right to initiate legislation is in effect verging on Fascism and is a very dangerous trend. I was glad to see other Government spokespersons rowing back from that position very quickly.

To put it at its mildest, the Government would find no support in the Constitution of our country for that view. In fact, Article 15.1º of the Constitution says very explicitly that “The sole and exclusive power of making laws for the State is vested in the Oireachtas: no other legislative authority has power to make laws for the State”. Article 284.1º says that “The Government shall be responsible to Dáil Éireann.” There is nothing in the Constitution providing that only the Government have the right to legislate and I am sure that the Fianna Fáil Party over the past number of years did not take that view when in Opposition.

If the logic of the Government's view expressed by the Minister for Industry and Commerce was accepted, obviously it would only be a matter of time before the Government would be announcing that not only did the smaller parties in the House not have the right to initiate legislation but that we should perhaps also be excluded from introducing amendments to the proposed legislation brought forward by the Government. Within a short time the Government would set about precluding us from either asking questions or speaking on debates if that attitude were to prevail. I can assure the Government that the Labour Party will continue to bring forward legislation in Private Members' Time and that we will be introducing a number of legislative measures in the course of the year. We intend to introduce measures dealing with the practice of companies who use huge voluntary redundancy packages to increase their profits. These include the [477] introduction of a new code of practice for office holders in a position to receive valuable gifts, a system of disclosure of Member's financial interests, and other measures. We will not be deflected in our intentions in this regard by the antidemocratic utterances of any Minister.

Having said that, when we publish legislation, what we intend will be clear for all to see. We will not be publishing Bills which say one thing on the surface and an entirely different thing when they are examined closely. We will not be publishing dishonest legislation, of the kind we are discussing this evening.

When this Bill was published, the Progressive Democrats held a press conference to launch it. That was on 2 February. At that conference, great play was made of the intention of the Progressive Democrats to take on the semi-State bodies and to curb their economic power. Their press release referred to the “protected position of the monopolistic semi-State companies” and went on to say that the Bill “would change all that.” Other contributors to the press conference, including Deputy McDowell, even talked about how privatisation of semi-State companies would be facilitated rather than hindered by legislation of this sort.

The publication of the Bill attracted the usual few paragraphs in the papers, and was then forgotten about. It was not until the debate started, and Members of the House began to study the legislation, that the real intentions of what looked like a very worthy measure began to sink in. My own study of the Bill gave rise, I must say, to considerable feelings of unease. I felt somewhat reassured by the commitment given to the House by the proposer of this Bill, Deputy Cullen, and by the Leader of the Progressive Democrats, Deputy O'Malley, that they would be more than happy to meet the concerns of any other Deputy or party about the Bill, and that they would positively welcome amendments that Deputies felt would improve the Bill. For that reason, rather than come to a hasty conclusion, I felt it would be worthwhile to test the commitments given by the Progressive Democrats. I wrote to the proposer of the Bill in the following terms:

[478] Dear Deputy,

I have been studying the Enterprise (Competition and Consumer Protection) Bill, as initiated by you, with a view to making a recommendation to my Parliamentary Party meeting on Wednesday next as to whether or not we should support the Bill at Second Stage.

While I support the principle of competition, the Bill as initiated gives rise to a number of serious questions. I would be grateful if you could give me your views on these issues prior to my discussing the matter with the Parliamentary Party.

I am particularly concerned about the application of the Bill to semi-state industry. It appears to me that the Bill as currently drafted can be used as a weapon in the hands of anyone wishing, on the one hand, to seek the privatisation of any aspect of the activities of semi-state industry, and on the other hand, by any individual seeking to prevent a semi-state company from expanding the products it manufactures or sells, the services it offers, or the market it supplies.

This may be a question of drafting, or it may be an expression of the principles underlying the Bill. The latter seems to me to be more likely, particularly in view of the last sentence of Paragraph 8 of the Explanatory Memorandum (although I notice from Deputy O'Malley's contribution to the debate that that sentence was inserted in error — a Freudian error?).

In any event, it would not be acceptable to me that a Bill should pass into law which has the potential effect of weakening public enterprises. For that reason, I would be glad to have your assurance that the Progressive Democrats would be prepared to support an amendment to the Bill exempting semi-State companies from the effects of the Bill.

The second reservation I have about the Bill as drafted concerns the onus it places on the individual to seek redress in any situation where he believes himself to have been wronged by a breach of the legislation.

Much of the “price-fixing” referred [479] to in the debate so far on the Bill could be more effectively dealt with by the restoration of consumer protection legislation, such as price control legislation; whereas the individual who seeks redress against professional malpractice will need a great deal more support than is proposed in your Bill.

In these circumstances, I believe that (a) the power of the Minister to fix prices by Order in any case where he deems it to be essential to the common good should be included; and (b) the right of the Director of Fair Trade to act on behalf of aggrieved persons must be spelled out in the Bill (similar to, for instance, the right of the Minister for Labour in certain equality cases), and I am seeking your assurance that appropriate measures on these lines will be included.

Since my Parliamentary Party meets on Wednesday to discuss the matter, I would be grateful if you could give this letter your earliest attention.”

In due course I received a long and clever reply to this letter indicating that of course the Progressive Democrats could not accept the major amendment I proposed because any such amendment would weaken the semi-State sector. Then to my amazement, while I was reading this letter Deputy MacDowell of the Progressive Democrats was busily distributing copies of it to the media and explaining to them that a reason the Progressive Democrats would not accept the amendment suggested was because it would weaken the Bill. Apart from the fact that this is the first time I have ever been asked by the media to comment on a letter to me which they had read before I had even finished reading it, the two different versions put out by two different spokesmen reveals the duplicity involved in their approach to this Bill.

The truth about this Bill is that it is an ideologically biased piece of free marketeering. The irony about the party that propose it is that they are perfectly capable of shouting slogans in support of a free market one minute and calling on whatever Minister will listen to them to fix the price of bread on the one hand or to——

[480](Interruptions.)

Mr. Spring: Information on Dick Spring  Zoom on Dick Spring  ——intervene to protect some parochial interest of their own, in the next. We will not support this Bill. We will oppose it. Our economy can only work effectively in the interests of all the people who depend on it if the State is given a strong role. That role must include the capacity of the State to intervene to create jobs where that is possible and to protect jobs. It must leave the State sector free to expand and develop according to commercial criteria, but the role we envisage for the State also includes the right to intervene to ensure that the interests of consumers, workers and business are reconciled to the maximum extent. That is why we will not support any blanket approach to this question. We intend to study the report of the Fair Trade Commission when published and if legislation is introduced as a result we will reserve the right to seek to amend it to ensure that the competition law we adopt is the one that suits the circumstances of this country.

Minister of State at the Department of Industry and Commerce (Mr. S. Brennan): Information on Seamus Brennan  Zoom on Seamus Brennan  A prohibition system deliberately modelled on the provisions of Articles 85 and 86 of the Treaty of Rome and on its implementing Regulation 17/1962 is, as has already been pointed out in earlier contributions, likely to be costly and bureaucratic if one takes into consideration the systems and procedures currently operated by the Commission of the European Communities in exercising its functions under these Articles. This is a serious omission in the Bill and one which only helps to underline the need to consider all aspects and implications of any proposed prohibition system in a very careful manner if we are to avoid some obvious pitfalls.

I will deal later with the Commission's procedures for operating the provisions of Articles 85 and 86 which will help to highlight such potential difficulties. Suffice it for me to say at this point that very considerable staff numbers are required in the EC Commission's Directorate General for Competition to enable it to carry out its role under these Articles. It [481] makes abundant sense to await the Fair Trade Commission's Report before any accurate conclusions can be reached on the precise staffing and cost implications of a prohibition system. If there is such a huge scale of anti-competitive practices in existence in this country as has been suggested by many Deputies, a situation which incidentally I would consider to be somewhat exaggerated, there are likely to be very considerable resources required in vetting and clearing notified agreements under a system along the lines of Articles 85 and 86. At a time when there are many demands on scarce resources, the Government would have to consider very carefully whether such a proposal should be proceeded with at this time in the manner envisaged in the Bill.

Much has been said by the Opposition in the debate about the negative, cautious and protectionist stance taken by the Government on this Bill in the light of 1992. It has been suggested, for example, that with the partial exception of the UK, all other European Community countries have applied the principles of the competition Articles of the Treaty of Rome to their domestic law. Let me put the record straight on this point. We are by no means the “odd ones out” in this regard. An excessively rosy picture of the situation in other member states has been painted. The real extent and effectiveness of competition legislation and administrative arrangements is less than ideal.

The extent to which other member states are reviewing and revising their legislation establishes the point. Denmark operates a “control of abuse” system largely along the same lines as our own. Spain has only recently introduced a system based on the principles of Articles 85 and 86 but may have to amend its legislation in the light of experience to correct a flaw which has been discovered in its system.

We have a sophisticated merger, takeover and monopoly control system, as is contained in the Mergers, Take-overs and Monopolies (Control) Act, 1978, such as does not exist in all other member states of the Community. Our Restrictive Practices Act, 1972, as amended by the 1987 Act, provides power to make orders [482] relating to restrictive practices which again are not generally available in other member states. Furthermore, our restrictive practices legislation does not provide for any exemptions such as are included in the competition legislation of some other member states. A considerable number of such exemptions, or block exemption regulations as they are commonly known, have become necessary, among other things, under the EC Commission's Articles 85 and 86 system in order to deal with the huge log-jam of notifications and delays which built up in the past to the detriment of legal certainty for business. Going down the road of exemptions in order to make a prohibition system workable in practice, having regard to scarce resources is not necessarily satisfactory as it would seriously dilute the clarity at the outset for business of what is prohibited and what is not. To suggest therefore that we are the “odd ones out” in this context is totally inaccurate.

To suggest also that we are being cautious and negative in our approach to the proposed Bill, which is deliberately modelled on the provisions of Articles 85 and 86 which were, I would point out, first drawn up well over 30 years ago is also totally unacceptable. Is it not only right and proper that we should proceed carefully and very deliberately in our consideration of any proposal of this type which is of fundamental importance in the context of encouraging and fostering economic growth in this country? It is, therefore, important that we proceed on that basis. I am not suggesting that the provisions of Articles 85 and 86 of the Treaty are deficient or inherently weak in any real respect. I would simply like to emphasise the importance of a careful considered approach to this question, having regard to the length of time which has elapsed since the drafting of the Treaty and the changed business environment since then, aspects of which may need to be taken into account, and particularly the importance of getting things right in the run up to 1992.

I would contrast this approach with those of the provisions of the Bill, which among other things, while addressing the future role of the Director of Consumer [483] Affairs and Fair Trade, gives no indication whatsoever of the future role it envisages for the Fair Trade Commission. The Fair Trade Commission, I need hardly point out, are one of the three authorities in which statutory control of restrictive practices legislation is vested by virtue of the Restrictive Practices Act, 1972, as amended by the 1987 Act. Indeed, it is fair to say that the Bill gives no indication of how the proposed new legislation would fit into current restrictive practices legislation. These are hardly examples of preparing our competition legislative system properly for 1992.

One of the supposed strengths of this Bill is to enable any person, trade, association or company aggrieved to seek redress directly through the High Court. It is also envisaged that the High Court would have the power to award damages, together with, if necessary, the power to grant an injunction and declaration to a person aggrieved by the anti-competitive practices of another. On the last point, I would point out that injunctive powers are already included in the existing provisions of the Restrictive Practices Act enabling a court of competent jurisdiction on the motion of the Director of Consumer Affairs and Fair Trade, or of the Minister, or of any person to enforce compliance with the terms of a Restrictive Practices Order. Such a provision does not, therefore, necessarily represent an improvement. Neither does direct access by an individual to the High Court to seek damages necessarily improve matters. While in theory it might, the practical reality of such a provision is that the costs involved would be perhaps prohibitive to the vast majority of individuals and, therefore, direct access would not be likely to be exercised to any significant extent.

Such considerations do not arise from an individual's point of view under current legislation. Here it is open to any individual to request the Director of Consumer Affairs and Fair Trade to investigate an alleged unfair or restrictive trading practice on his or her behalf under any existing Order which may be in force in the area concerned, and to [484] prosecute any breaches which may occur. Where there is no legislation in force, the Director may, if he considers the complaint to be justified, seek to resolve the matter on an informal basis. If this does not prove possible, or if the problem is seen as a significant one for the sector concerned, the Director may then recommend that the matter be formally examined by the Fair Trade Commission. Such an inquiry by the Fair Trade Commission may result in a report to the Minister for Industry and Commerce containing whatever recommendations they consider necessary to deal with the problem concerned. The Minister may then, if he accepts these recommendations, make an Order under section 8 of the Restrictive Practices Act. Such Orders could, for example, prohibit restrictive practices including arrangements, agreements or understandings which prevent or restrict competition or restrain trade, or the provision of any service or which involve resale price maintenance.

Even for big businesses the undoubted costliness of seeking redress through the High Court and the possibility indeed of defences against mischievous claims by competitors, might also be an impediment to rather than a catalyst towards economic progress. There is also the possibility that rather than bringing about a reduction in costs to industry and businesses at large the changes proposed here could have the opposite effect. I am referring here to the possibility of the proposed prohibition system spawning a whole new service industry perhaps in the legal area where additional expertise, such as already exists in the Community, may be required to unravel the interpretation of Articles 85 and 86.

An important consideration which arises in the Bill is its provision proposing to give certain judicial powers to the Director of Consumer Affairs and Fair Trade relating to the proposed functions of that authority. This raises a constitutional issue which is one of a number of issues being addressed in the current study being undertaken by the Fair Trade Commission. It is indeed a matter which is currently the subject of legal advice from the Attorney General's Office. It is possible, for example, that under the [485] Irish Constitution, it would not be possible for the Director of Consumer Affairs, or the Fair Trade Commission for that matter, to be granted powers similar to those of the EC Commission. Clearly this is a crucial issue which needs to be teased out very carefully before it could be said with any certainty that the House would be constitutionally entitled to grant judicial powers of the kind mentioned to any individual or body. Perhaps Deputy Cullen has already investigated this question.

Deputies have referred to present legislation as being cumbersome and offer Articles 85 and 86 as a panacea. I thinks it is worthwhile to look at how Articles 85 and 86 work in practice. Article 85 of the Treaty of Rome prohibits agreements or other practices which distort competition and which are liable to affect trade between member states. If an agreement is prohibited it is null and void and the Commission has the power to order parties to terminate the illegal conduct and it may impose fines. However, the prohibition of Article 85 can be declared inapplicable by the Commission if the effects of a restrictive agreement or practice are sufficiently counterbalanced by a number of beneficial elements. In these cases exemptions can be granted by the Commission.

Article 86 deals with the behaviour of undertakings which are in a dominant position. Having a dominant position is not in itself prohibited, there must be an abuse of a dominant position. The administrative practice of the Commission provides for a procedure enabling parties to an agreement to seek a declaration from the Commission that their activities do not come within the scope of the competition rules. These declarations are called negative clearances and these can be given in individual cases provided the parties have notified the agreement to the Commission.

Notification of agreements, decisions and concerted practices is made to the Commission for the purpose of seeking a decision either that the conduct is not caught by Article 85 (1) at all, that is the negative clearance procedure, or that while it is caught it may nevertheless [486] benefit from exemption under Article 85 (3). No exemption or negative clearance may be granted unless an agreement has been notified to the Commission.

Any interested party may, of course, complain about anti-competitive behaviour to the Commission. If after examination of the complaint the Commission considered it to be well-founded it will proceed to ensure the termination of the infringement. The three basic types of decisions which the Commission can take in the application of Articles 85 and 86 are: decisions granting negative clearance; exemption decisions pursuant to Article 85 (3) and decisions ordering the termination of an infringement. When an undertaking has made an application seeking formal assurance from the Commission that their agreement or other commercial activities are not deemed to infringe the competition rules, that is the negative clearance procedure, the Commission must first give any other interested parties the chance to make their views on the matter known. A second formality which must be observed before negative clearance can be given is consultation with member state authorities through the Advisory Committee on Restrictive Practices and Dominant Positions. If after these steps have been taken the Commission maintains the view that negative clearance is justified, a formal decision is taken which states that on the basis of the facts in its possession, there are no grounds for the Commission to take any action under Article 85 (1) and/or Article 86 against the agreement or the commercial activity involved. If new facts subsequently arise or if the circumstances involved change substantially the Commission retains the power to reconsider the matter.

I would now like to look at the exemption procedure. As in the case of negative clearances, a decision granting exemption must be preceded by publication of the main elements involved, giving interested parties the opportunity to submit any observations and by consultation of the Advisory Committee on Restrictive Practices and Dominant Positions. The Commission's decision indicates why the agreement or other activity in question is deemed to violate Article [487] 85 (1) and what elements have been found by the Commission which fulfil all the requirements for justifying an exemption under Article 85 (3). Exemption is always granted for a fixed period of time, which can, of course, be extended. The decision may impose certain obligations on the undertaking involved and in some cases, the parties may be requested to modify certain aspects of their agreements before exemption can be granted at all.

If the Commission reach the preliminary conclusion that a violation of Article 85 (1) or Article 86 is taking place and in the case of notifications, that the conditions for granting an exemption under Article 85 (3) are not present it must give the parties notice of its objections in the form of a written communication. Parties are given a specific time limit to respond in writing to the Commission objections. Parties can also request an opportunity to argue their case orally. Following the oral hearing, the Commission must consult the Advisory Committee on Restrictive Practices and Dominant Positions. Only after all these steps have taken place can the Commission come to a final decision.

Where an infringement is found to exist the Commission will order the undertaking involved to put an end to it forthwith. If appropriate, the Commission also has the power to order positive action by the undertakings involved, for example, where a dominant undertaking has been found to abuse its position by refusing, say, to supply a customer, the Commission may require it to resume supplies to such customer within a specified period and ensure appropriate supply arrangements for the future. The Commission may also impose fines.

Depending on the complexity of the complaints of any given case it may take the Commission one or two years or more to reach a final decision.

For the sake of expediency, many cases before the Commission are concluded by way of informal settlement, notably where the undertakings involved voluntarily eliminate any objectionable practices. In fact, the Commission normally [488] takes a dozen or so formal decisions each year, whereas the number of informal settlements is usually running into several hundred.

In some cases the Commission may conclude an informal settlement with the parties by way of issue of an administrative letter known as a “letter of comfort”. This states that the Commission, on the basis of the information at its disposal, has decided to take no action and proposes to close the file. These letters are of an administrative nature only, and are not legally binding in any way.

If we are to adopt the Bill as proposed by Deputy Cullen, the above procedures, with the exception of consultations with the Advisory Committee on Restrictive Practices and Dominant Positions, would have to be carried out. While, as I have previously indicated, I accept that our current competition legislation is not perfect, I feel that we cannot merely incorporate Articles 85 and 86 of the Treaty of Rome into domestic legislation as is suggested in sections 1 and 2 of the Bill. If new legislation is to be put in place we must try to learn from the problems encountered by the EC in implementing Articles 85 and 86 and there have been many. As Deputies are probably aware, the UK authorities published a consultative document entitled “A Review of Restrictive Trade Practices Policy” in March, 1988. I would now like to address very quickly some of the issues raised in this document. Others have made reference to these points throughout the debate.

The UK report found that although it is impossible to be certain that any particular class of agreement is always going to be significantly anti-competitive, nevertheless there are some which can be identified as hard core and which the Government in the UK are particularly keen to see eradicated. These almost always have severe anti-competitive effects, and for the sake of clarity the UK Government believe that it is worthwhile to list them in new law to illuminate the general prohibition. This would not mean that the generality of the provision would in any sense be diminished. The purpose of the illustrative list is to ensure that businessmen are left in no doubt about [489] the central targets of the law. The UK government propose that the law should state that, in particular, the prohibition applies to the following agreements and concerted practices:

(1) those fixing prices and charges, including any terms or conditions (for example, discounts, credit terms) which determine effective net prices (recommendations by trade, professional and other associations on prices or charges are also included if those recommendations have the effect of determining minimum or actual prices);

(2) collusive tendering;

(3) those sharing or allocating markets, customers, raw materials or other inputs, processing or capacity;

(4) those prohibiting or otherwise restricting advertising or the provision of other promotional information;

(5) collective refusals to supply or to deal with suppliers, collective discrimination in the terms on which different customers or classes of customer are supplied, and collective anti-competitive conditions of supply such as tie-ins, aggregated or loyalty rebates and “no competition” clauses.

It is possible that practices along these lines would be more appropriate in the Irish context than those listed in Article 85 and as set out at section 1 (2) of Deputy Cullen's Bill, which tend to relate to inter-state trade.

The practices listed in the Third Schedule to the Restrictive Practices Act, 1972 could also be used as a basis for drawing up a list of specific prohibitions. This would cover any measures, rules, agreements or acts, whether put into effect by a person alone, in combination or agreement with others, or through a merger, trust, cartel, monopoly or other means or device whatsoever, which—

(a) have or are likely to have the effect of unreasonably limiting or restraining free and fair competition,

(b) are in unreasonable restraint of trade,

(c) have or are likely to have the [490] effect of unjustly eliminating a competitor,

(d) unjustly enhance prices of goods or charges for services, or promote unfairly at the expense of the public the advantage of suppliers or distributors of goods or of persons providing services,

(e) secure or are likely to secure, unfairly or contrary to the common good, a substantial or complete control of the supply or distribution of goods or any class of goods, or the provision of services or any class of services,

(f) without just cause prohibit or restrict the supply of goods or the provision of services to any person or class of persons, or give preference in regard to the supply of goods or the provision of services,

(g) restrict or are likely to restrict unjustly the exercise by any person of his freedom of choice as to what goods or services he will supply or provide, or as to the area in which he may supply or provide goods or services,

(h) impose unjust or unreasonable conditions in regard to the supply or distribution of goods or the provision of services,

(i) without good reason exclude or are likely to exclude new entrants to any trade, industry or business,

(j) secure or are likely to secure unjustly the territorial division of markets between particular persons or classes of persons to the exclusion of others, or

(k) in any other respect operate against the common good or are not in accordance with the principles of social justice.

The above list of practices which might be outlawed under a prohibition system could also be considered for inclusion in any amending legislation. The Fair Trade Commission will be examining all these issues as part of their present study of the respective merits of the control of abuse and prohibition systems.

It is clear, therefore, that even if the basic Article 85 and 86 route is chosen [491] there are a number of possible ways of implementing it. It would be extremely unwise to pick the particular way at this stage. The Fair Trade Commission have not given their report on the basic question, much less suggested any particular way or ways of approaching it. Why rush ahead at this stage? Let us see what that report contains.

It may not be of any great concern to some Deputies that a Bill be properly drafted. I suggest that, on reflection, it should be essentially important to every Deputy to ensure that Bills are completely and properly drafted. It has been argued that we should allow the Bill to go to Committee Stage, “warts and all” in Deputy Bruton's words. This is not a proper approach to legislation. Let us await the Fair Trade Commission report, debate it, decide on the appropriate course of action for this country in the context in which we now find ourselves and then and only then, if necessary, we can properly prepare any legislation that might be required. That is the fairest way to prepare any legislation for 1992.

Miss Kennedy: Information on Geraldine Kennedy  Zoom on Geraldine Kennedy  It gives me great pleasure to support the Enterprise (Competition and Consumer Protection) Bill, 1989 before the House this evening. This is the fourth Bill brought forward by the Progressive Democrats in their Private Members' Time over the last two years.

The main aim of the Bill is to deal with one of the major structural problems in our economy, that is, the prevalence of restrictive practices and anti-competitive conduct in many sectors of industry, trade and professional services. The Bill is designed to introduce for the first time in Irish law a general prohibition on anti-competitive practices in all sectors of the economy. I want to deal this evening with the principles behind the Bill rather than go into specific detail on its drafting.

I believe that the aim of an enterprise economy free from anti-competitive and anti-consumer practices is worthwhile in its own right in the year 1989. Added to that, however, is the necessity to prepare the Irish economy for the rigorous competition which will be opened up in three years' time, with the advent of 1992. The [492] real value of the Bill must be seen in this context.

I am surprised that once again it has emerged that the Government are the only party in this House without a clear policy for 1992. We saw this in the budget a few weeks ago when the Government failed abysmally to recognise that 1992, the single market and the harmonisation of taxes are a mere three budgets away.

Now, contrary to the interests of the Consumers' Association of Ireland, the Government are stating in their reaction to this Bill that competitiveness and the consumer interest can be dealt with some other time in some other year. Another holding operation has been put in place. We are to await the report of another committee, arising from the report by the Fair Trede Commission. I want to refer to the politics behind this Bill as played out in this House. The Minister for Industry and Commerce, Deputy Burke, stated at the weekend that a Government defeat on the Second Stage of this Bill would be treated seriously and would be dealt with accordingly. His imprudent and threatening remarks were followed up by the Government spokesperson who stated, quite outrageously, in Monday's newspapers that “legislation is the responsibility of the Government and they are not prepared to have that responsibility usurped, particularly by smaller parties, by means of Private Members' Time being used for a purpose for which it was never intended”.

I can assure the Minister that this arrogant attitude on the part of the Government has done more for the Progressive Democrats and this Bill than he could ever have imagined. What the Minister succeeded in doing is what we had sought to do in introducing the Bill that is, to heighten public awareness of the need for greater competition and consumer protection in the Irish economy.

The Minister's remark was correctly interpreted by many, including the Consumers' Association of Ireland, as being an attempt on his part to deny to the Irish economy the benefits of fair trade. He succeeded in confirming what most people suspect: that the existing situation with regard to fair trade enforcement procedures is unsatisfactory, cumbersome [493] and inapplicable to modern commercial practice.

The Minister's ill-advised reaction also demonstrates his hostility to new ideas and proposals, especially if they come from the Progressive Democrats. That is no reason and should never be a reason for rejecting a Bill from any party.

The Bill forms part of a policy programme that the Progressive Democrats have prepared to encourage an enterprise economy that will shift economic activity away from the over-burdening influence of the State to the private sector and, especially, to small enterprises which have the best record in regard to job creation in the past few years. As part of this programme, it is our view that the best way to do this is to remove as many obstacles and impediments as possible.

In the retail industry, for example, a representative of RGDATA, the small shop owners' federation, pointed out on radio that his members, in their efforts to make available non-prescription products, such as Junior Disprin, have found that their suppliers have been placed under unacceptable pressure by pharmacists seeking to retain the exclusive right to distribute these goods. Under section 2 of the Enterprise (Competition and Consumer Protection) Bill, 1989, which seeks to bring into domestic law Article 86 of the Treaty of Rome, such an attempt would be unlawful and the members of RGDATA would have an immediate right of recourse to the High Court for, first, under section 3 (2) of this Bill, an injunction to restrain or prohibit such an attempt and secondly, under section 3 (3) for damages, including punitive damages, for any financial or commercial loss their members may have suffered as a result of such a concerted practice.

More importantly, however, and in contrast to the present seven-stage procedure that Deputy Bruton referred to in detail last week, the victims of unfair trading practices would not have to establish a prima facie case of unfair trade. Instead, the burden of proof and the onus would be on the pharmacists to show to the High Court's satisfaction that what they were doing was not unlawful.

Needless to say, the Minister's reaction [494] to this proposed procedure was to dismiss it at first hand but then this is not surprising when, in his own words, he gave this Bill only “a rapid assessment of its contents”. Indeed, ostrich-like, he has his head firmly planted in the sand while all around him his European counterparts have been much more progressive in their attitude. Their response has not been considered unusual or radical because such procedures are already a well-established part of the law that applies to Community trade. I would caution the Minister, while he still has time, to reconsider his exclusive dependence on the anticipated report to be produced by the Fair Trade Commission since he may find that the court in Luxembourg will apply the benefit of Articles 85 and 86 of the Treaty of Rome directly to this country in any case.

If the Minister is to avoid future embarrassment in Europe, especially when he attends meetings of the Council of Ministers, he would do well to reconsider the contents of this Bill and to set out some positive programme to do away with anti-competitive practices.

If that is not enough to encourage him to reconsider his earlier position, I can give him another example where the provisions of this Bill would be of considerable benefit both to businessmen and consumers. I refer to the housing construction industry which is especially relevant in the context of the exorbitant rise in housing costs. The sale and supply of building products throughout the country is a matter of grave concern, particularly in relation to one product extensively employed in the construction of new housing and the reconstruction of the existing housing stock. This product is plaster and its derivative product, plasterboard. The Irish market for plaster products is dominated by a monopoly supplier, Gypsum Industries, which is a direct subsidiary of another substantial enterprise known as British Gypsum.

Unlike its British parent, the Irish company has no competitors on the Irish market, not even from its British parent. It enjoys unique monopoly privileges to the detriment of the domestic building industry and householders. Since this company enjoys a predominant position [495] in the building supplies trade, it has been able to see off a number of serious attempts to provide other sources of supply from France and, most recently, from Spain. If these attempts had been successful, much cheaper plaster and plasterboard products would have been available to Irish builders, who would have been able to pass this benefit on to house purchasers in the form of lower costs.

Each time, however, an attempt was made to provide alternative supplies, those supliers found that their customers did not repeat their orders because the customers were prohibited from obtaining supplies of raw plaster from the Irish producer. What is most alarming is that a near monopoly producer is able to control the flow of its product to suppliers selectively and on the basis of whether they stock or refuse to stock competitors' plaster products.

The alarming aspect of this situation is that, under the existing procedures, a substantial amount of time would elapse before any action might be taken and this would be too late to remedy any of the damage caused. Alternatively, the Bill we have proposed would enable aggrieved parties to have immediate recourse in matters under dispute and have a prompt decision. If the Minister can object to this only on the ground that business may have large legal costs to cope with, he is then ignoring the much larger costs that the consumer is expected to bear individually and in silence. I would prefer to leave decisions on these matters to the good sense of consumers, as we propose in the Bill.

I now refer to the erroneous statement made by a Government spokesman earlier this week. It was stated that legislation was the sole responsibility of Government and that smaller parties should not usurp these powers. In the normal run of State matters it has generally been assumed, wrongly, that the primary responsibility for the nation's affairs has been, in practice, with the Government regardless of the onus set by the Constitution. This view is totally wrong and contrasts greatly with most other advanced democratic countries. [496] Their parliamentarians are not only encouraged but expected to involve themselves in the legislative process.

When the history of the 25th Dáil is written historians will notice three particular matters. In the first place the 25th Dáil is unique in that, for the first time, a new party have taken their place in the House challenging and competing with the older political parties. Secondly, the effort to establish this party, and its very nature, has led to a fundamental revaluation in political practices in that both the major parties have reacted by either performing responsibly in Government, as in the case of Fianna Fáil, or by devising ways of politically accommodating necessary Government action as in the case of the Fine Gael Tallaght strategy.

The significance of this recently acquired maturity on the part of the two major political parties has not only broken the monopoly of the left on the formation of Government as alternatives to Fianna Fáil, it has also led to the most unique feature in the political history of the State, manifesting itself in a democratic consensus of the centre. I wish to refer to this point. However, this consensus is fragile and not one which the two major parties would choose themselves. It is in reality their short-term solution to alleviate the widespread pressure for better political standards which contributed so much to the formation of our party.

Another distinguishing feature of this Dáil, which I ask Minister Burke to note, is that the Opposition parties have, for the first time in the history of the State and in reaction to the formation of the Progressive Democrats, made major efforts — as is their right — to introduce an alternative legislative programme or to amend existing Acts which have greatly benefited the work of this House. It is noteworthy and not without significance that it was in this Dáil that Deputy Shatter succeeded in obtaining all party agreement to the passage of the Judicial Separation Bill.

As Chief Whip of the Progressive [497] Democrats it is my view that it is more useful to use Private Members' time as an Opposition party dealing with legislative matters than with motions. I ask the Government to take that point on board. In their allegation that they held sole responsibility for introducing legislation they are in total conflict with the rights given to Opposition parties in the Constitution.

An important point is that although the Government — and through them the country — benefit from the current democratic consensus of the centre, the Government do not share or participate in it. This point was brought home very strongly in the remarks made earlier in the week on this Bill. Whenever the Government or individual Ministers attempt to ignore this consensus and the rights of Opposition parties, as they attempted to do in recent days, they dislike being reminded that they enjoy it on sufferance only.

I commend this Bill to the House.

Minister of State at the Department of Industry and Commerce (Dr. McCarthy): Information on Seán McCarthy  Zoom on Seán McCarthy  The discussion on this Bill could have been used as an opportunity to debate competition policy and its role in economic development. Some Deputies did so and I welcome their contribution to the evolution of policy in this area. There is no doubt that when we discuss the issue again these contributions will be found to have been beneficial. Unfortunately others did not make such a constructive contribution.

I want, in this final speech from the Government side, to lay to rest some of the unfounded criticisms of our position and to make the position of the Government clear. It is essential on so important a topic that the record show our position rather than the position that some have represented us as having.

The Government are clearly opposed to this Bill. The criticisms of the Bill have been detailed at great length by previous speakers, not all of them from this side of the House. Because of the detail that has already been covered I will be brief in summarising the defects inherent in the Bill.

First, the Bill attempts to import [498] Articles 85 and 86 of the Rome Treaty into Irish legislation without the benefit of a proper study of what that might mean. There is great haste in proceeding without the benefit of the study being undertaken by the Fair Trade Commission. If that study was not already well under way, or if the consequent report was not expected for a considerable time, then it might be legitimate to put pressure on for early action.

However, this is not the case. The Fair Trade Commission have been studying the subject for over a year. They will report this year and an opportunity will be given for debate on that report. It is only after the report and debate that a well informed decision can be taken on whether Articles 85 and 86 should be the basis for our competition law.

The second major criticism is that, even if Articles 85 and 86 were accepted as the proper basis for reform of the system, the Bill does not do so adequately. This is not a mere matter of drafting which could be readily corrected at a later stage. It is a matter of the principles in the Bill. Deputy O'Malley pointed to sections 1 to 3 as being the core of the Bill. These are the sections which attempt to transpose the provisions of Articles 85 and 86 into our system, but there is one significant omission.

Section 1 allows exemptions from the general prohibitions. Article 85 does so too, but the Bill does not ensure, as Article 85 does, that an exemption must allow consumers a fair share of the resulting benefits from any such exemption. That is no drafting point. That goes to the heart of what competition policy is about. It is, as Deputy O'Malley said, the core of the Bill.

There are, of course, drafting deficiencies, some of which might be corrected. I make no great point of these. It is necessary to recognise, however, that adopting the wrong starting point for legislation can result in tremendous difficulties when the attempt is made to draft back to the desired end.

The third major area of difficulty in the Bill is the question of what powers should be accorded to what bodies in order to implement its provisions. This is much more than a question of administration.

[499] It can be difficult to make proper administration arrangements in new situations but these problems are soluble. What is of much more significance is the constitutional aspect of this issue. Under present legislation the responsibilities and powers are divided among the Fair Trade Commission, the Director of Consumer Affairs and Fair Trade, the Minister for Industry and Commerce and the Oireachtas. This arrangement has been described as cumbersome. Even if it is, it does give legal certainty about the appropriate division of powers.

The Bill before us provides no such certainty. The Fair Trade Commission, the Minister for Industry and Commerce and the Oireachtas are all taken out of the picture. The director is given powers of a judicial nature. Such radical proposals should not be adopted lightly. Is it really the wish of this House that, whatever about the Fair Trade Commission and the Minister for Industry and Commerce, the Oireachtas itself will be excluded from any role? There is a clear constitutional issue about the appropriate assignment of powers and responsibilities that needs to be addressed. This point was made early on in the debate on the Bill but the Bill's sponsors have not answered it adequately. I understand that this is among the issues being considered by the Fair Trade Commission and that they have sought legal advice on the point. Here again we have reason to question why there is such haste to leap blindly into areas that are under examination.

The final issue of significance is the burden which would arise from the implementation of the system envisaged in the Bill. The present control of abuse system under the Restrictive Practices Acts has been criticised as cumbersome. The prohibition system has been held out, in comparison, as a model of efficiency, certainty and ease. That view of what would result from the Bill is far too starry eyed. It glosses over all the real difficulties. This is one of the real disappointments of the debate. We had here an opportunity to tease out some of the difficulties that a new system might produce. Of course the Fair Trade Commission are [500] examining the same issues. This debate might have contributed something to the commission's deliberations. Instead, all the difficulties were glossed over by the sponsors of the Bill.

For the system envisaged by the Bill to work it will be necessary for existing and future agreements to be examined to see whether the agreements can be exempted from the prohibition provisions. I will leave aside who should conduct this examination since I have referred to that difficulty already. What is involved in this examination? The appropriate authority have to examine the impact of the agreement on competition. Then the contribution to improving the production and distribution of goods or to promoting technical and economic progress has to be assessed. Finally, a balance has to be drawn between the negative impact on competition and the more positive elements and a decision given.

If the examination is to be more than superficial a great deal of time and expertise will have to be devoted to it. This cannot be done without cost. The resources to carry out these functions will have to be provided. In times such as these there has to be a clear justification for placing additional burdens on scarce resources. We have not heard that justification. It is not possible to quantify the resources needed but if the economy is as littered with restrictive practices and agreements as some speakers have indicated there would be no light task facing the authority who would be charged with examining and deciding on exemptions.

From what I and other speakers on this side have said, it is clear that we do not wish this Bill to proceed. We have asked that it be withdrawn and I would make that suggestion again. If the points that have been made on this side are considered objectively it will easily be recognised that to proceed with the Bill would be premature.

As I said at the outset, I want the Government's position to be clear. The question of adopting a prohibition system on the lines of Articles 85 and 86 of the Treaty of Rome instead of the exisiting control of abuse system in the Restrictive Practices Acts remains open as far as the [501] Government are concerned. We have——

Miss Colley: Information on Anne Marie Colley  Zoom on Anne Marie Colley  That is pretty obvious.

Dr. McCarthy: Information on Seán McCarthy  Zoom on Seán McCarthy  —— taken no view on this fundamental question of principle. It would be premature to do so. The Fair Trade Commission were asked to examine this question as a result of discussions here just over a year ago. They have addressed themselves to this task and will be reporting during the year. Having set the task for them, can we not wait to see the results of their deliberations? That is the position of the Government. Wait for the facts to be in. Take no hasty and unnecessary leap in the dark. The Bill is not appropriate now, and the Government are clearly opposed to it.

Mr. Cullen: Information on Martin Cullen  Zoom on Martin Cullen  This evening a very clear question is being asked of this House. Do we accept the principle of creating a competitive environment which can foster its own dynamism, increase its output, streamline its operations and, most of all, create jobs or do we still adhere to the old protectionist ways? It appears that the Government still adhere to them. Adherence ro these ways have resulted in stagnation, a lethargic environment, no job creation and the haemorrhage of our highly skilled people through emigration. There is no mystery about what the Enterprise (Competition and Consumer Protection) Bill sets out to do. It definitely is not a hostage to any ideological viewpoint. We are all agreed in this House that we want to see a thriving economy but do we have the courage to create the framework that would unleash into our economy the competitive forces which already exist throughout Europe? I would point out to the Minister that this is not a time for sitting on the fence or pretending to acknowledge what is necessary and simply doing nothing about it.

During the course of this debate we have been given many examples of areas where there is no competition, where cartels operate and price fixing is rampant. These range over the whole gamut of our domestic economy. To maintain the status quo would be a recipe for disaster [502] and would cause our economy to become irrelevant in the context of a growing European economy. There are many areas where no competition exists. Take, for example, the area of freight transport. As we are all aware, most of our goods are transported by road and sea — some 90 per cent of them. A large percentage of these goods is now being exported via Northern Ireland. This is largely as a result of the cartel of B & I and Sealink charging exorbitant rates and operating restrictive practices in respect of freight shipment. This has caused a large number of hauliers to look elsewhere and, unfortunately, they are being accommodated elsewhere on this island. The State through its control of B & I allowed this monopoly to stagnate, to become cumbersome and extremely inefficient. This eventually led to job losses. We now hear of the streamlining of operations, of forward planning, effective efficiency and productivity levels, all very laudable in their own way and necessary but is it not too little, too late, given that so many members of the workforce have lost their jobs? What would have happened if this company had been faced with competition during the past number of years? Would this problem have arisen and would huge losses have been incurred? I believe they would not if real competition existed in the marketplace and the Government stopped bailing out a badly run organisation costing the taxpayer millions of pounds.

Because of our island status within the EC this is probably one of the most important areas in the development of our economy, yet the Government have still not got their act together. This will only begin to happen when this House begins to pass the type of legislation before it this evening. Wanting something to happen and setting about doing it are two different things. While the Government have been lucky in many ways and have enjoyed a unique consensus in this House they have shown a complete lack of imagination when it comes to the bringing forward of legislation which would fundamentally change the way in which our economy operates.

As we speak in this House tonight [503] there is turmoil in the bakery industry. The price war which has broken out and which is being led by a major supermarket chain is a clear example of anti-competitive behaviour and an abuse of its dominant position. This price war not alone affects the price of a loaf of bread but also the foundation of the bakery industry. The Minister has refused to answer any questions put to him by members of this party in this House. It is wrong and unjust that one company because of their favourable position in the marketplace could effectively bring the Irish milling industry to its knees through the importation of large amounts of flour from the UK. Also, the huge range of small bakeries throughout the country are unable to compete in what is a very false market. I accept rationalisation is needed but surely the Government are not announcing that this should be the model used for any rationalisation undertaken in the future. This is abuse of a dominant position and is not what is meant by fair competition in the marketplace. Their activities show the uselessness of the existing legislation and the urgent need for a Bill such as the one before us here this evening. Surely at this late hour it should be possible for the Government and Opposition parties to see reason. The very practices this Bill seeks to outlaw are occurring outside the gates of this House tonight.

This Enterprise (Competition and Consumer Protection) Bill affects everybody in this country and is, therefore, very fundamental legislation which can bring direct benefits to the people we are supposed to represent in this Dáil. Do this Government really want this country to be part of Europe in the fullest sense, or is it just a case of making the right noises to ensure that the few bob is thrown in our direction? On numerous occasions I have heard various Ministers extol the virtues of other countries, such as Denmark, and they are held up to us as the shining light, the example for us all to follow, but words alone did not make these countries strong. Clear planning and determination by legislative action was the key to a change of fortune.

The attitude of this Government to an [504] integrated Europe is shrouded in mystery and it is done deliberately to cloak their inability to formulate a clear set of objectives. The Progressive Democrats are not prepared to sit back and see this happen. We want a competitive and dynamic economy operating on the domestic market as well as the international market. If the two are not operating in tandem, then our chances of success are totally marginalised.

The Minister in his speech last week went into great detail about what he termed the drafting errors of the Bill before us tonight, at the same time totally ignoring the principle of what was being established and the appalling lack of legislation in this area.

Now let us look at some of the points raised by the Minister for Industry and Commerce. The first point is the future of the Fair Trade Commision. My answer is a very simple one; of course the Fair Trade Commission will have a future role and, indeed an enhanced role. The Minister also questions whether his power to make restrictive practices orders will be retained. I and my party would agree that on balance the Minister should retain this power, but again this can clearly be set out on Committee Stage.

One of the major smokescreens that has been thrown up by the Minister, and we have seen numbers of backbench Fianna Fáil Deputies slotted in here to perpetrate this myth, is that this Bill will impose a huge cost in time and manpower on the State. This is simply not true and well the Minister knows it. This Bill quite clearly seeks to allow an individual or a small company or indeed an association, to take direct action through the courts against any company by whom they feel they have been severely damaged without having to utilise the State apparatus to do so.

The other concern is that a large number of companies will be involved in expensive litigation. I put it to the Minister that if this Bill was implemented and a clear general prohibition on anti-competitive practices introduced in Irish law, then companies would desist from abusing their position in the marketplace, in the full knowledge that if they did not do so, they would be open to paying [505] substantial damages to injured parties. This is one of the principles that this Bill establishes and the Minister knows the desirability of this course of action. Is the Minister seriously trying to suggest that in a small country such as ours we want to have two separate economies, one subject to Articles 85 and 86 of the Treaty of Rome, which of course is the dynamic end of our economy, and the other subject to a different set of rules? How can he and State agencies be treated seriously when they tour this country, and constantly hark on the theme of getting Irish domestic industries operative in the international market and at the same time here this evening give them no opportunity of preparing for the forces and laws which they will be subject to? This is the most ridiculous and indefensible argument that I have ever heard put forward.

One thing we have really seen established in this debate is this Government's real attitude to an integrated Europe. They simply have no conception of what it is about and no real desire to allow this country to become part of a new, integrated dynamic Community. This is a disastrous state of affairs and raises many serious questions beyond the scope of this Bill.

The Government and all the parties in this House know full well that the vast majority of Bills brought before this House are altered, it is hoped for the better, on Committee Stage. Take, for example, the Companies Bill, which is before this House at present and has already been through the Seanad. We have already seen hundreds of amendments made to that Bill, all of them necessary and in the interests of better legislation. Is the Minister prepared to state here this evening that this Bill was badly drafted by a full staff of parliamentary draftsmen? Of course it was not. It simply took the course of all Bills brought to this House. The principle of what the Companies Bill set out to do is still intact, and I put it to the House tonight that that is what we are trying to establish with this Bill. We must give clear signals from this building to our economy and set down in no uncertain [506] terms the type of environment we want to see created.

I assure this Government that the Progressive Democrats will hound them until we see some concrete proposals emanating from them and they will not be allowed to put this country into reverse because of their own ineptitude. During this debate we also saw the true colours of this Government come to the fore, namely, their real desire for absolute dictatorial power which has always been a feature of the Fianna Fáil Party. Where, I would like to ask them, does it state in the Consititution that legislation is the sole prerogative of the Government? It is not, it is the sole prerogative of the Oireachtas, that goes for every man and woman in this Parliament, and no Government, and especially a Fianna Fáil Government, will be allowed to usurp that position.

Now let us look at the role of the leftwing parties, the Labour Party and The Workers' Party, the men who would have us all believe that they have cornered the market on protecting the weak individuals in our society. How will they ever be able to justify not supporting this Bill when it quite clearly sets out to look after the small man, the man in the street, the small shopkeeper? This Bill would remove them from the margins and give them a very definite role centre stage in the full range of business.

If that was achieved, what would they have to shout about? Their irrelevance to developing Ireland would be complete. I would suggest that the Labour Party should join up with their colleagues in the United Kingdom in walking off the cliff into the abyss. They are now completely out of step with the whole Socialist movement and indeed Communist movement throughout the world who have taken a new and enlightened look at the whole operation of the world economy. The Labour Party of this country have not done so. No, for them the people of this country cannot have real jobs, cannot play a real role in society, cannot operate in the real world. It is only right, in their view, it if fits in with some monolithic ideology which is about as relevant today as goods being transported around the world by sailing ships. [507] I have given this consideration and it strikes me that this island is too big for them. They would rather have something the size of Rockall which would allow them to put their slogans on top of it and have mutual admiration societies while the rest of the country underneath stagnates, decays and falls away. How will they and this Government justify their stance to the consumers' association and to the ordinary people? They will not be able to do so because there is absolutely no justification for their shameful behaviour here this evening.

I would like to quote from the Consumers' Association of Ireland's news release circulated today. They say about this Bill, that it

...is a most welcome contribution in the law relating to Irish consumers as well as offering protection to many small and less powerful enterprises in the Irish marketplace. It is also timely in that it proposes to set the posture of Irish business in good shape for the completion of the internal market in 1992.

This night can be clearly marked down as the night when the tide turned on the Government and no amount of dam-building will keep the tide from going out, in its own relentless way. The people are beginning to see through the negative and unimaginative approach that Fianna Fáil have in Government and, in particular, the young people are quite rightly not prepared to put up with it. The great tragedy about this debate is that the Government know that the legislation is going to have to come into Irish domestic law, and no doubt when the Government [508] in the UK make their changes, our Government will once again be tripping over themselves trying to follow suit. But, surely, this is all so unnecessary. Have we not matured enough in this Dáil to operate in a responsible and constructive manner?

By recognising what is worthwhile, we simply cannot walk away from this type of legislation and a huge range of other vital legislation. The lessons learned in this debate must be taken on board by the Government. They will not be allowed to continue in such an irresponsible and obstructive manner. The country simply does not have the time to await the grace and favour of Fianna Fáil. There are new challenges and new opportunities open to us. For the sake of our young people facing emigration, can we not for once get this House in order and do right for the people?

The Progressive Democrats will continue to bring forward a full and relevant legislative programme. We, more than any other party in this House, have brought an imaginative and constructive approach to business and we will not be deterred.

I want to thank the Fine Gael Party for their support and recognising the importance of this Bill and the urgent need for its passing into Irish domestic law. The enterprise Bill we have discussed for the last two weeks gives the Government the opportunity to utilise the consensus they have been given in this House and this party will not be deterred from responsible action. I am proud to have had the opportunity to move the Bill on behalf of the Progressive Democrats and I commend it to the House.

Question put.

Barnes, Monica.
Barrett, Seán.
Barry, Peter.
Begley, Michael.
Birmingham, George.
Boland, John.
Boylan, Andrew.
Bruton, Richard.
Burke, Liam.
Carey, Donal. [509]Deenihan, Jimmy.
Doyle, Avril.
Dukes, Allan.
Enright, Thomas.
Farrelly, John V.
FitzGerald, Garret.
Flaherty, Mary.
Flanagan, Charles.
Gibbons, Martin Patrick.
Griffin, Brendan.
Harney, Mary.
Harte, Paddy.
Hegarty, Paddy.
Higgins, Jim.
Hussey, Gemma.
Keating, Michael.
Kelly, John.
Clohessy, Peadar.
Colley, Anne.
Connaughton, Paul.
Cooney, Patrick M.
Cosgrave, Michael Joe.
Creed, Donal.
Crotty, Kieran.
Crowley, Frank.
Cullen, Martin.
Deasy, Austin. [510]Kennedy, Geraldine.
Lowry, Michael.
McCoy, John S.
McDowell, Michael.
McGahon, Brendan.
McGinley, Dinny.
Molloy, Robert.
Naughten, Liam.
Nealon, Ted.
O'Brien, Fergus.
O'Keeffe, Jim.
O'Malley, Desmond J.
O'Malley, Pat.
Quill, Máirín.
Sheehan, P.J.
Taylor-Quinn, Madeline.
Wyse, Pearse.
Yates, Ivan.

Abbott, Henry.
Ahern, Michael.
Andrews, David.
Aylward, Liam.
Barrett, Michael.
Bell, Michael.
Brady, Gerard.
Brady, Vincent.
Brennan, Matthew.
Brennan, Séamus.
Browne, John.
Burke, Ray.
Byrne, Hugh.
Calleary, Seán.
Collins, Gerard.
Conaghan, Hugh.
Connolly, Ger.
Coughlan, Mary T.
Cowen, Brian.
Daly, Brendan.
Davern, Noel.
Dempsey, Noel.
Dennehy, John.
De Rossa, Proinsias.
Desmond, Barry.
de Valera, Síle.
Ellis, John.
Fahey, Frank.
Fitzgerald, Liam.
Fitzpatrick, Dermot.
Flood, Chris.
Flynn, Pádraig.
Foley, Denis.
Gallagher, Denis.
Gallagher, Pat the Cope.
Geoghegan-Quinn, Máire.
Gregory, Tony.
Higgins, Michael D.
Hilliard, Colm Michael.
Howlin, Brendan.
Hyland, Liam.
Jacob, Joe.
Kavanagh, Liam.
Kemmy, Jim.
Kirk, Séamus.
Kitt, Michael P.
Kitt, Tom.
Lawlor, Liam.
Leonard, Jimmy.
Leyden, Terry.
Lynch, Michael.
Lyons, Denis.
McCartan, Pat.
McCarthy, Seán.
McCreevy, Charlie.
Mac Giolla, Tomás.
Mooney, Mary.
Moynihan, Donal.
Noonan, Michael J. (Limerick West).
O'Dea, William Gerard.
O'Donoghue, John.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Kennedy, Michael.
O'Leary, John.
O'Rourke, Mary.
O'Sullivan, Toddy.
Pattison, Séamus.
Power, Paddy.
Quinn, Ruirí.
Reynolds, Albert.
Roche, Dick.
Sherlock, Joe.
Smith, Michael.
Spring, Dick.
Stafford, John.
Stagg, Emmet.
Swift, Brian.
Taylor, Mervyn.
Treacy, Noel.
Tunney, Jim.
Wallace, Dan.
Walsh, Joe.
Walsh, Seán.
Wilson, John P.
Woods, Michael.
Wright, G.V.

[511] Question declared lost.


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