I welcome the Minister of State, Deputy Ossian Smyth, to the House.
Communications Regulation and Digital Hub Development Agency (Amendment) Bill 2022: Committee and Remaining Stages
Section 1 agreed to.
SECTION 2
Amendments Nos. 1 to 3, inclusive, 10, 11, 15 to 24, inclusive, 26 to 30, inclusive, 32 to 34, inclusive, 40, 42 to 45, inclusive, 49 to 51, inclusive, 67 and 68 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 1:
In page 11, to delete line 4.
On Second Stage, Senator Horkan mentioned that he is unhappy with the term “high-risk vendor”. The criteria comes from the EU toolbox, which uses the phrase “high-risk supplier”, and that is the origin of our terminology. During the passage of the Bill through the Dáil and Seanad, some Deputies and Senators requested that the term “high-risk vendor” be changed. Therefore, I am tabling a number of amendments to the text of the Bill to use the term “relevant vendor” instead and the term “certain vendor” will be used in the Long Title of the Bill and the title of Part 3. The change in terminology will not impact the purpose or operation of the legislation.
I thank the Minister of State. I thought I said that we might reflect on what was being said. Last time, I had about one and a half minutes to speak but clearly it was an impactful one and a half or thereabouts two minutes. I thank the Minister of State for taking it on board. I felt that the phrase “high-risk” was insulting. It was inappropriate in legislation. While we all want to make sure our networks are safe and our components within the networks are safe and so on, I did not think it was the right phraseology to use. Clearly, the Minister of State and his officials took that on board and I thank them for that.
The terminology “relevant” in almost all of the changes and “certain”, used I think on two occasions instead, is more tempered, measured language. It takes out any of that kind of inflammatory language that might have been perceived, more than anything else, by people. I appreciate that the Minister of State did that. This legislation is better legislation for having that language in it. I am not doing a Second Stage debate. We discussed a very comprehensive piece of legislation last week, including the digital, An Post and consumer stuff. In addition, vendors or the suppliers of components or the parts of a network that may be perceived to be at risk were addressed. I welcome the Minister of State’s contribution on that.
Amendment agreed to.
Government amendment No. 2:
In page 11, line 18, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 3:
In page 11, between lines 23 and 24, to insert the following:
“ “relevant vendor measure” has the meaning given to it by section 25;”.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3
I move amendment No. 4:
In page 11, line 36, to delete “may” and substitute “shall”.
Section 3 grants wide powers to the Minister to make regulations on any other matter referred to in this Act. It is quite substantial. Regulations on any matter was referred to and there are all kinds of things referred to in the Act. Given how wide those powers are, it is appropriate that there is some form of a check and balance in respect of that. That is why I am suggesting changing the line that states that “The Minister may consult with the Commission before making regulations under this Act.”, to “The Minister shall consult with the Commission before making regulations under this Act.” I note that in other parts of the Bill where the Minister is making regulations, checks and balances were inserted.
We will come to that in terms of amendment No. 5. There are checks and balances in others and I have tried to replicate them. Am I to understand that amendments Nos. 4 and 5 are not grouped?
We will come to that. Given there is an attempt to create checks and balances and suitable scrutiny of proposed regulations in relation to certain aspects of the Bill, that seems to be undercut by this general provision under section 3, which says that the Minister can make any regulations about any aspect at all. Why do we have certain sections where the Minister makes regulations and he or she has to check them against various bodies and have transparency around them, and then have a different provision which simply says that the Minister can make any regulations at all on any aspect of anything mentioned in the Bill and there is only a loose requirement that they may consult with the commission?
I am not proposing to accept this amendment. The Minister routinely consults with the Commission for Communications Regulation, ComReg, during the making of regulations which have relevance to its work. The Department and ComReg have a productive and contrastive relationship in this regard. However, mandating the Minister to consult ComReg in all instances where regulations can be made under this Act is not necessary and would fetter the Minister's discretion in respect of his regulation making powers under the Act. In certain provisions, including in the respect of the security measure guidelines, it has been deemed appropriate to mandate such a consultation given the potential impact of the regulation on the market. A majority of regulations the Minister will make under the Bill relate to the adjudication process and its establishment and while engagement with ComReg occurs as a matter of course generally during this process, it was not considered necessary in this instance. There is a difference in the way that the consultation is phrased in the cybersecurity provisions versus the communications company customer service provisions and I hope I have explained why that is.
The problem is that section 3 does not say that there are certain areas in which the Minister will just make regulations. Section 3 refers to regulations in relation to any matter referred to in this Act. As the Minister of State rightly pointed out, there are different requirements and I will come to them in one of my later amendments. There are specific and different requirements in relation to certain aspects of the regulations around cybersecurity. They are different and there are different processes around the regulations that are set out but all of that is undercut by section 3, which provides for regulations on anything. The Minister of State has stated that I cannot say that maybe the Minister should have to consult with the commission on everything but perhaps t is a bit loose to have in the Bill a section providing that the Minister can regulate on anything without consultation. It seems to contradict the policy intent in certain other sections of the Bill, which sets out specific plans in relation to them. It creates an ambiguity that I do not think is helpful whereby the Minister may choose to take the route with lots of regulations attached and with a process attached that is set out in one of the later sections or he or she could just use section 3 and address any issue at all without any of that process or consultation. It seems, perhaps inadvertently, to be a strikingly widely worded section. It does not say, for example, regulations in relation to any other matter mentioned in this Act which is not subject to sections X, Y or Z. It seems very loosely phrased and I am concerned in that respect.
It is crystal clear to me that in one section one has to consult and in the other section one does not. I do not think the two sections are in conflict with each other. I understand what Senator Higgins is saying that one part applies to the entirety of the Act; it does not say that one must not consult. There is simply one section where consultation is necessary and another section where it is optional.
If that was the case it would not refer to any matter referred to in this Act, it would say certain matters, but it says "any matter". We disagree so that is fine as I can press the amendment.
Amendment put and declared lost.
I move amendment No. 5:
In page 12, between lines 5 and 6, to insert the following:
“(5) The Minister shall, subject to subsection (7), before making regulations under subsection (1), publish a draft of the proposed regulations on a website maintained by or on behalf of the Department of Environment, Climate and Communications and allow a period of 30 days beginning on the day on which the draft is published during which persons may make written representations to the Minister in relation to the proposed regulations.
(6) The Minister may, having considered any representations received during the period specified in subsection (5), make the regulations with or without modification.
(7) Where the Minister is satisfied that regulations under subsection (1) are required urgently in order to prevent a serious imminent risk to the security of networks and services, to the health or safety of persons or to property, the Minister may make the regulations without complying with subsection (5).”.
This is an attempt to place some limits on what I believe to be very sweeping powers under section 3. It duplicates the provisions from section 6, which have checks and balances on the regulation-making powers and this is the point I made earlier. Under section 6, for example, in the context of providers' obligations in respect of managing risk, the Minister will publish a draft of the regulations on a website. There is a 30-day period of consultation provided whereby people can make written representations, there is consideration of the representations and then a decision is made. That is a process and I have simply tried to apply the same process to any of the regulations that might be made under section 3.
I am not accepting this amendment. It would curtail the Minister's power to make regulations necessary for the functioning of this regime. The primary reason for which we expect the Minister to make regulations is in respect of the adjudication regime to be established under Part 7. These regulations are procedural in nature but they are important in providing the nuts and bolts that will allow the adjudication regime to function on a day-to-day basis. My officials are currently engaging with ComReg on the development of these regulations, which I hope to be able to publish in the very near future. Unfortunately, we have been advised that the Bill cannot commence without those regulations and providing for the amendment as set out above would delay this process. As Senator Higgins is aware, we are currently facing infringement proceedings that could result in substantial fines being imposed on Ireland for failure to transpose the European electronic communications code. For this reason the enactment and commencement of this Bill must be progressed without any undue delay. We have required such a consultation process for the making of regulations relating to the security measures guidelines, which will have application for all operators, and given the broader impact of those guidelines it was felt that broader consultation would be appropriate and we have provided for that in the Bill.
On a matter of information, will the Minister of State give some detail on where we are with these infringement matters? Has the clock started ticking or is it about to start ticking? What is the window and equally, what is the fine or the cost of us not passing this measure by whenever? Obviously we want to pass it tonight. How much per day and from when does the clock start ticking?
We are waiting for a response from the European Court of Justice for a hearing date and we do not know how much it would fine us, what the amount would be or how many days it would be dated to. We are in a situation where we were advised that we could not transpose this legislation through statutory instrument. It is normally done through secondary legislation but because the adjudication process had to be compliant with the Constitution, we were advised we would have to do this through primary legislation. That delayed everything and as a result, we are late but we have shown progress and have managed to get it through the Dáil. If we can enact this soon I hope we can do it without being fined at all.
How late are we?
It is 21 December 2020.
Okay, quite a while ago.
We are considerably late.
First, I make the point that we have an expectation, whenever a very wide provision is put in, of how it might be used. Expectations are effectively meaningless unless we either clarify how it will be used or we acknowledge that we have left something wide open. I do not see that it might not be used in relation to the same matters because it specifies a "matter referred to in this Act". Perhaps these will be regulations in respect of the management of risk that will bypass the process under section 6, for example. If there is a specific reason and anticipated use of this power to make use of this regulation, it is clear that there is, why not specify that and address that? I have no doubt the legislation will go through but if Ireland is keen to show it has understood the concern as to how these are matters to be dealt with through primary legislation and not solely through regulation and secondary statutory instrument, would it not be better to address that issue and name the plan to address those issues in the primary legislation?
Instead of making a statutory instrument regulation, we are putting forward primary law to say we can make statutory instrument regulations. Why not name the purposes intended if they are the key purposes? There is a bit of the law of unintended consequences with that matter because there are also a number of other provisions in this Bill and other issues addressed. We will come to some of them later.
Amendment put and declared lost.
Section 3 agreed to.
Sections 4 to 6, inclusive, agreed to.
SECTION 7
Government amendment No. 6:
In page 14, line 25, after “or” where it firstly occurs to insert “she”.
This amendment fixes a simple typographical error.
Amendment agreed to.
Section 7, as amended, agreed to.
Sections 8 to 17, inclusive, agreed to.
SECTION 18
Amendments Nos. 7 to 9, inclusive, and 46 to 48, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 7:
In page 21, line 7, to delete “shall” where it firstly occurs and substitute “may”.
These sections of the Bill are a matter of serious concern. I am surprised they have not got more attention. We are usually very careful of anything potentially seen as interfering with the separation of powers and the due course of our courts.
Amendment Nos. 7 and 8 relate to section 18. That section basically says a decision of the High Court would be final and "no appeal shall lie from the decision of the High Court to the Court of Appeal". We are effectively removing access to the Court of Appeal for cases here and it is a serious thing to be doing. Part of my instinct is to oppose the section, as I would with anything that seems to curtail the normal course of justice and proper judicial process. How we engage on this affects what we do on Report Stage. In these amendments I have given some benefit of the doubt and assumed there is a strong rationale for why we are removing access to the Court of Appeal. Even if there is such a rationale, it is important there be a very careful balance.
Amendments Nos. 7 and 8 are very modest. The stronger thing to do, which I reserve the right to do on Report Stage, is to seek the removal of that section from the Bill and thus the removal of that limit. In amendment No. 7, I have simply proposed that it "may" be final, rather than simply saying here is an absolute blunt measure that does not have regard to the specificities of any individual case but says it "shall" be final. Section 18 provides that "leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that [such] an appeal should be made to the Court of Appeal". Amendment No. 9 removes that curtailment around the point of law of exceptional public importance so leave shall be granted where it is desirable in the public interest. It should be sufficient for the High Court to certify and allow a Court of Appeal hearing in a situation where the former certifies it is desirable in the public interest that an appeal should be made to the latter. Putting in the additional requirement of a point of law of exceptional public importance means we are going to have inequality of treatment under the law. For example, three persons, or three separate parties, may be affected by a decision made at the High Court that is against the public interest and potentially against their specific rights. If one of them gets to take a case to the Court of Appeal because there is a point of law of exceptional public importance, we are saying the others will not meet that standard because somebody has already used that point of law, even though the same point of law may be relevant for different cases. A public interest requirement that simply says where it is, on balance, in the public interest that a case should go to the Court of Appeal should be sufficient. To put a bar on that meaning a case needs to be not only justified but interesting in order to get access to the Court of Appeal is an extra standard that is not necessarily appropriate in this situation. That is amendment No. 9.
No. 7 simply provides that it "may" be final. For example, it could be part of the decision-making of the High Court that it may be final but it gives some scope. It would also be more in tune with the fact there is a caveat given later.
All these amendments are my effort to nuance this overall decision to limit access to the Court of Appeal, which I am keen to hear justified properly. The Bill says a person should not be able to go the Court of Appeal except where there is a point of exceptional public importance and he or she has certified the public interest needs him or her to take that appeal. With amendment No. 8 I am saying the restriction on the ability to go to the Court of Appeal should only apply "in cases where the High Court certifies that such an appeal would constitute a risk to national security or public safety". Those are the standards used elsewhere in the legislation, save, I note, places where "national security or public order" are used. "National security" is an appropriately high bar but "public order" is pretty wide. We will come to that phrasing in other parts of the Bill. I have suggested "risk to national security or public safety" as reason enough to not have a case aired further in the Court of Appeal but the burden should be on that, rather than there being an assumption a person will not have access to the normal course of justice. I am concerned by this. I have not seen very much of this sort of direct legislative interference in the course of justice.
Amendment Nos. 46 to 48, inclusive, are duplicates of amendments of Nos. 7 to 9, inclusive, in that they make the same modifications with respect to the automatic denial of a right of appeal where it secondly occurs in the Bill. This time those amendments seek to make those modifications to section 31 which relates to the automatic denial of rights of appeal in relation to the high-risk - or "relevant", as it is now described - vendor measures in section 28.
Under the measures in the Bill, vendors identified as high risk or relevant could prohibit the use or installation of components by a vendor identified as high risk. These amendments are trying to shift the burden of proof. We have to clear on what the basis would be. If there is a time-bound concern in regard to these matters - and there may be a time-bound urgency too - it is possible for the legislation to provide that the decision of the High Court might stand, pending a decision by the Court of Appeal. That approach could be taken if the concern is about timing. In the context of closing the door on access to the Court of Appeal, if we start to do that, where will it lead?
This is not novel legislation. We are not starting to do this here. This approach was taken with the Competition (Amendment) Act 2022. There are considerable similarities between the Bill and that legislation.
Section 18 covers a broad suite of decisions, including appeals, namely: appeals against all regulatory decisions of ComReg under the European Union (Electronic Communications Code) Regulations 2022; appeals against regulatory decisions under Parts 2 and 4 of the Bill; and appeals against decisions of the Minister under the 2022 regulations in the context of his role and of the universal services and geographical survey provisions of those regulations. It is not solely about decisions relating to relevant vendors. Section 31 deals with to appeals relating to the designation of relevant vendors. The aim of these appeals provisions is to ensure that the appeals process is sufficiently streamlined and consistent. Removing the barrier to further recourse to the Court of Appeals would potentially open up the appeals process for gaming by operators who seek to submit continued appeals as a way of frustrating decisions of ComReg or the Minister. This could substantially reduce the effectiveness of decisions made. This opinion is based on experience and what happens in the courts right now. The alternative test suggested in the amendment of a risk to national security or public safety would not be relevant in the context of the overwhelming majority of decisions to which section 18 relates, which are more likely decisions relating to, for example, the imposition of access obligations on regulated entities under SI 444 of 2022 than any matter relating to national security.
The Law Reform Commission suggested a similar approach in its report on regulatory powers relating to corporate offences. It suggested that a test be applied for appeal from the High Court to the Court of Appeal. The test the Law Reform Commission suggested was to the effect that the decision involves that a matter be of general public importance or that an appeal be in the interests of justice. Law Reform Commission stated that this was to mitigate the phenomenon of regulatory gaming by reducing the opportunity for a well-resourced regulated entity to take appeals as a delaying or frustrating tactic. We share the concerns of the Law Reform Commission. That is the reason for providing a test for appeals to the Court of Appeal under the Bill.
The language suggested by the Law Reform Commission, as outlined by the Minister of State, is different from the language used in the Bill. General public importance is very different from exceptional public importance. Exceptional public importance is, by its nature, exceptional, so that it must be shown to be different from other issues of public importance. The interests of justice is an important point because the Law Reform Commission is recognising that individual access to justice component which stands and is related to individual rights. There may be a reason why this cannot be addressed. I have come up against something similar in regard to other provisions. I refer to situations relating to what is described as gaming, whereby a High Court decision will stand pending an appeal. Rather than an appeal being a premise that allows for the delay in the enactment of, for example, a required measure, a High Court ruling would apply pending an appeal. The presumption would sit with the High Court judgment while a decision on an appeal is awaited, rather than it being a case of removing access to the appeals process altogether.
That is what I was getting at in the context of the time component. I understand that there is a concern in the context of there being a delay in enacting a requirement. Is there a way to address that by giving a presumption for the interim period, rather than, for example, the presumption being that a directive of the High Court might not need to be applied because it is subject to appeal? Genuinely, that is a legal question that I would be interested in hearing the answer to. It would be useful. I am concerned about access to justice because, to be frank - this does not relate to the Minister of State alone, it relates to the Government as a whole - I have been extremely concerned in respect of provisions relating to access to justice in other areas, including the environment. That is why I seek to be vigilant about access to justice. I am no championing the relevant vendors' situations or their trying to avoid access; I am concerned with the general principle. I am looking at why this approach removes blocks from that piece. I may introduce amendments on Report Stage in the context of the wording the Law Reform Commission suggested, which is quite different from that in the Bill.
The situation that currently arises is that a company wishes to supply a service to the public, which the public deserves to receive, but finds it cannot do so because a regulated entity simply uses a large quantity of its cash reserves to frustrate the process in the courts by means of endless appeals, technical moves and so on. For that reason, I believe it is right to apply some kind of test in respect of the right to appeal. Senator Higgins loosely described an alternative approach to trying to solve the same problem. If she wants to draft an amendment on that and submit it for Report Stage, I will look at it.
Amendment put and declared lost.
I move amendment No. 8:
In page 21, lines 8 to 11, to delete all words from and including “in” in line 8 down to and including line 11 and substitute “in cases where the High Court certifies that such an appeal would constitute a risk to national security or public safety.”.
Amendment, by leave, withdrawn.
I move amendment No. 9.
In page 21, lines 9 and 10, to delete “its decision involves a point of law of exceptional public importance and that”.
Amendment, by leave, withdrawn.
Question, "That section 18 stand part of the Bill", put and declared carried.
SECTION 19
Government amendment No. 10:
In page 21, to delete lines 21 and 22.
Amendment agreed to.
Government amendment No. 11:
In page 21, between lines 26 and 27, to insert the following:
“ “relevant vendor” means a vendor, in respect of which the Minister has made an assessment under section 22;”.
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20
Amendments Nos. 12, 14, 25, 31, 36 and 37 are related and may be discussed together by agreement.
Government amendment No. 12:
In page 22, line 6, to delete “public order,” and substitute “or”.
I propose the deletion of the words "public order" from Part 3 in order to ensure that the Minister will have the high bar of national security as a consideration in regard to security measures when it comes to certain vendors under this Part. As I am proposing this deletion, I do not propose to accept this amendment No. 37 in the name of Senator Higgins.
I welcome the deletion of the words "public order", particularly as there is a very wide interpretation in that regard. The Minister of State has addressed my concern because what is proposed will be confined to the issue of national security. That is an appropriately high bar. In that context, I am happy not to press my amendment.
Amendment agreed to.
Section 20, as amended, agreed to.
Sections 21 and 22 agreed to.
Amendment No. 13 not moved.
Section 23 agreed to.
Section 24 agreed to.
SECTION 25
Government amendment No. 14:
In page 23, line 18, to delete “or public order”.
Amendment agreed to.
Government amendment No. 15:
In page 23, line 19, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 16:
In page 23, line 20, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 17:
In page 23, line 22, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 18:
In page 23, line 24, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 19:
In page 23, line 26, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 20:
In page 23, line 28, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 21:
In page 23, line 30, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 22:
In page 23, line 33, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 23:
In page 23, line 35, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 24:
In page 23, line 38, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 25:
In page 24, line 11, to delete “or public order”.
Amendment agreed to.
Government amendment No. 26:
In page 24, line 12, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 27:
In page 24, line 14, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 28:
In page 24, line 18, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 29:
In page 24, line 20, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 30:
In page 24, line 21, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 31:
In page 24, line 22, to delete “or public order”.
Amendment agreed to.
Government amendment No. 32:
In page 24, line 23, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Section 25, as amended, agreed to.
SECTION 26
Government amendment No. 33:
In page 24, line 31, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 34:
In page 24, line 32, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
I move amendment No. 35:
In page 24, line 33, after “Minister” to insert “reasonably”.
This amendment again seeks to put an extra requirement on the Minister in terms of requiring a relevant provider or vendor to treat as confidential the existence of the contents of the measure, in circumstances where the Minister considers the disclosure of the measures imposed by the notice would be contrary to the interests of national security or public order. The Minister of State will be aware that in that same section we both now have matching amendments regarding the deletion of the phrase "or public order". One of my concerns was that I felt this was too low a bar for such a requirement on confidentiality, so I tried to delete that and we are going to come to the Minister of State's amendment that deletes that shortly as well. I welcome the removal of the public order provision but the other constraint I had suggested for that area was that the Minister should "reasonably" consider a matter. It is a very usual thing in legislation to put in a requirement for reasonableness in terms of the consideration. Making the decision on the requirement for confidentiality should be clearly based not solely on an opinion but on a reasonable opinion and one which could stand up to a test of reason. That is where I have inserted the phrase "where the Minister reasonably considers" rather than having the Minister say this is his or her feeling on this. It is a small thing but we are dealing with significant constraints on normal practice given the introduction of confidentiality requirements and the introduction of secrecy and respect. We will come later to court proceedings. That is why I am trying to make sure the bar is higher. I appreciate that the Minister of State has taken on board my concerns regarding amendments Nos. 36 and 37 but amendment No. 35 is in the same spirit.
I am opposing this amendment. There are a number of steps in Part 3 involving decision-making by the Minister in the interests of national security. The Minister may assess at any time the likelihood of a vendor being subjected to interference by a third country and during that assessment he or she may consult with such appropriate persons or request any person to provide information. Following this, if necessary to control risks to the security of electronic communications networks or services, which may affect national security, he or she can issue a notice that states this very reason. If consultation would be contrary to the interests of national security, he or she must state the reasons for this. The same pattern and logic of decision-making in national security applies in section 26 with regard to keeping the existence or contents of the measure confidential. Part 3 of the Bill strikes an appropriate balance between the need to protect the confidentiality of information relating to the security of the State on the one hand and on the other hand the right of an appellant to have access to the courts and to fair procedures. As such, the amendment is unnecessary. Reasonableness is implicit in all decisions and considerations of the Minister.
I do not know if all decisions of all Ministers can claim to have implicit reasonableness in everything they do. We are moving towards a dangerous papal-infallibility-style approach if we believe that. Nonetheless, in acknowledgement of the fact that the Government has narrowed the scope in which this discretion may be applied to only issues of national security, I am not going to press the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 36:
In page 24, line 35, to delete “or public order”.
Amendment agreed to.
Amendment No. 37 not moved.
I move amendment No. 38:
In page 25, between lines 2 and 3, to insert the following:
“(3) A requirement for confidentiality made under subsection (1) may apply for a period of up to 36 months.
(4) Following the expiry of a confidentiality period under subsection (3), a requirement for confidentiality under subsection (1) may be renewed where the Minister reasonably considers that disclosure of the measures would still be contrary to the interests of national security and public safety.”.
This again relates to the confidentiality requirements and seeks to limit the scope of the confidentiality requirement. Currently, there is no limit on the time period relating to the confidentiality requirement. I understand and accept the principle that there may be situations, for example, during an ongoing investigation that may involve multiple parties engaging on issues of national security that are at play, where this confidentiality requirement might be needed but it should not be open-ended. The fact that there is a risk to national security in January 2024 which requires a confidentiality requirement to be placed on a vendor does not necessarily mean that in 2027 the same requirements are appropriate or, indeed, that the same risk to national security would apply. Where the State is putting measures in place regarding vendors in situations where the interests of national security are potentially impacted, you would hope those measures are not all that would be done but rather that subsequent, consequent and related actions would be taken to address concerns relating to national security.
The fines for a breach of this confidentiality are substantial. I am worried we could have a situation in which we have a black box, whereby a subsequent Minister may not even be aware of what measures and requirements have been put in place. There may be a situation whereby one is looking to confidentiality measures that are put in place and a lack of learning and knowledge by the State or, indeed, by Ministers or certainly by parliamentarians who legislate in this area as to exactly what orders have been made and what has happened with this legislation.
With regard to trying to seek that balance, I am not seeking to remove that power and issue of confidentiality, but I am concerned with anything that moves decisions and very significant legal requirements, with very significant penalties made by the State, out of the public eye and public scrutiny. There should be a balance, at some point when it is safe and national security is not an issue, whereby they may be in a position to move back into appropriate public scrutiny and the significant powers that have been granted under this legislation could be scrutinised, evaluated or considered with regard to how we go forward.
Amendment No. 38 seeks to say that the requirement for confidentiality would apply for a period of up to 36 months, that is, three years. I am not trying to scupper the impact. Three years should be a period of time in which the potential risks to national security may be examined and, one would hope, be addressed. I am not saying it would happen automatically. I am simply saying that, following the expiry of that period, there would be a new assessment. I am not saying it must end after 36 months but that, after three years, there would be a review and consideration as to whether it is still in the interests of national security to have this confidentiality constraint.
Having that three-year period would provide for the overlap whereby, for example, a subsequent Minister may be in a position to assess, under new information, the national security grounds on which orders have been made. That may be useful to a future Minister making those decisions. It is very reasonable that, every three years, one would consider a decision of that import again. It allows us to learn as a State and to see the patterns in threats to national security and the effectiveness or non-effectiveness of the tools we have been applying, because, otherwise, we just do not know what is happening.
We have seen extremely authoritarian governments coming through in a number of parts of the world. We know that a measure such as this is exactly the kind of thing that can lead to situations whereby it is not really known what is happening. Parties, that is, companies, in such a situation could be under orders - my colleagues talked about non-disclosure agreements - where they are not able to speak about what they are being required to do. We have had that concern with regard to national security measures, some of them in the United States, whereby companies were required to give access to their data in a way their users were not aware of.
This is a reasonable measure and a reasonable balance. I am not trying to curtail the urgent action. Three years should be enough and, after that, if it is not enough, the case should be made a second time.
I am not accepting this amendment. Senator Higgins describes a situation where a Minister comes into office and does not even know which relevant vendors have had notices written to the operators on them. Section 32 specifically addresses that because it requires ComReg to issue a report to the Minister on the vendors that have been scheduled under the security measures that have been taken. It has to be done every year. Subsequent Ministers will be aware of which security measures are in operation.
The requirement for confidentiality is necessary where there is information that is likely to be harmful to the security and the defence of the State and the State's relationship with other states and the requirement for confidentiality is necessary for the public interest. Under this legislation, it is explicitly stated that the Minister may, at any time, by further notice in writing, revoke or vary a relevant vendor measure. He or she will be required to give the notice to any provider to which the notice applies. The Minister can vary the notice to lift the confidentiality requirement at any time and will also have access to the measures that have been put in place. Thus, this amendment is not required.
With respect, the fact the Minister may revoke is not the same and, indeed, the ComReg report saying who has been sanctioned is not the same as saying what the measures are and how they are applying. Even if the Minister has access to that ComReg report, which would bluntly say who has been subject to the measures, the issue of legislative or parliamentary scrutiny is not really addressed.
How does an order come to be revoked? Is it a spontaneous thought from the Minister? The parties affected by the order are not in a position to speak about or advocate for it because they are banned by confidentiality with a potential for five year's imprisonment if they do speak about it. It is very hard to see. I do not see a future Minister spontaneously going through previous orders that have been issued and asking how he or she feels about it now, whereas if there was a statutory provision that said the Minister would review these decisions, such a review would happen. I am not taking away the discretion of the Minister to choose to continue that confidentiality requirement. I am simply suggesting it should be re-examined after three years. Saying it may be re-examined is not the same as saying it should be re-examined.
Amendment put and declared lost.
Question, "That section 26, as amended, stand part of the Bill", put and declared carried.
SECTION 27
Government amendment No. 39:
In page 25, line 4, to delete “Minister” and substitute “Minister,”.
This amendment fixes a typographical issue.
Amendment agreed to.
Government amendment No. 40:
In page 25, line 7, to delete “high-risk” and substitute “relevant”.
Amendment put and agreed to.
Government amendment No. 41:
In page 25, lines 10 and 11, to delete “and the Minister shall certify the reasons for dispensing with the requirement in subsection (1)”.
I am making this deletion as it was accepted in error. Section 25(3) serves the same purpose by a relevant vendor notice, which will specify that the Minister considers it necessary to take the measures contained in the order to control risks to the security of electronic communications networks or electronic communications services which may affect national security and, where the Minister considers that consultation would be contrary to the interests of national security, the reasons this is so.
Amendment agreed to.
Section 27, as amended, agreed to.
SECTION 28
Government amendment No. 42:
In page 25, line 13, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 43:
In page 25, line 18, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29
Government amendment No. 44:
In page 26, line 33, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Section 29, as amended, agreed to.
SECTION 30
Government amendment No. 45:
In page 28, line 3, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31
I move amendment No. 46:
In page 28, line 16, to delete “shall” where it firstly occurs and substitute “may”.
Amendment put and declared lost.
Amendments Nos. 47 and 48 not moved.
Section 31 agreed to.
Section 32 agreed to.
SECTION 33
Government amendment No. 49:
In page 28, line 26, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 50:
In page 28, line 30, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Government amendment No. 51:
In page 28, line 32, to delete “high-risk” and substitute “relevant”.
Amendment agreed to.
Section 33, as amended, agreed to.
SECTION 34
Amendments Nos. 52 and 53 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 52:
In page 29, line 37, after “Part,” to insert “including a review of any regulations made under this Part, in consultation with the Commission and the relevant committee,”.
Amendment No. 52 seeks to impose a requirement on the Minister such that, when conducting a review of the part of the Bill relating to high-risk or relevant vendors, he or she would also review any regulations he or she has made under this Part and that this would be done in consultation with the commission and the relevant committee. This is to prevent a situation whereby the Minister would review the operation of his or her own regulations without any consultation with the third parties. It aims to ensure there is consultation with the commission and the relevant committee. It is a bit of a safety net in respect of the regulations the Minister may make under this section.
Amendment No. 53 inserts a requirement for any report on the review of the operation of this Part to include detailed information. The Minister of State mentioned the ComReg report. I am not sure whether I accept that this document, as a report to the Minister that relates to matters that touch on national security, will be available to the public or to the Legislature at large. Amendment No. 53 seeks to ensure that the report on the review would include information on the number of confidentiality orders issued in respect of high-risk or relevant vendor notices, the number of High Court cases taken in relation to these matters and the number of times access to an appeal was denied. It would also require that the report be shared with both Houses and the relevant committee. While we would not have information on individual instances, this would allow us to identify patterns. For example, we might see appeals being denied in large numbers or a large number of confidentiality orders issued. While the parties subject to confidentiality orders cannot raise it as an issue and the Minister is not obliged to review those orders after a period of three years, having this information would at least allow the Legislature, parliamentarians and the public to identify patterns that are emerging and to seek clarification on them.
I have always envisaged that the report to both Houses of the Oireachtas would contain information on the number of confidentiality orders and appeals as well as further information. However, there will not be any regulations made under this Part. While I am not going to accept this amendment, I will ensure that the information released includes what the Senator has requested and that it will be shared with both Houses and the relevant committee.
Amendment, by leave, withdrawn.
I move amendment No. 53:
In page 29, after line 40, to insert the following:
“(2) The report under subsection (1) shall include information on the number of confidentiality orders issued under section 26, the number of High Court cases taken under section 17, and the number of appeals denied under section 18, and shall include an assessment of any regulations made under this Part.
(3) The report under subsection (1) shall be shared with both Houses of the Oireachtas and the relevant committee.”.
Amendment, by leave, withdrawn.
Section 34 agreed to.
Sections 35 and 36 agreed to.
SECTION 37
Amendments Nos. 54 to 60, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 54:
In page 30, line 33, to delete “may” and substitute “shall”.
With amendment No. 54, we are into a different topic and a different set of issues. We are out of the area of risks to national security although we are still discussing dangers to the public, especially the risks they face in their engagements with different operators.
Amendment No. 54 is simple. It requires that the commission "shall" specify minimum quality-of-service standards rather than that it "may". Many other provisions of this legislation are structured around these standards. They are the basis on which failure of service is established and on which compensation is paid under schemes and further regulatory provisions are also linked to them. As a lot of this part of the Bill leans on these minimum quality-of-service standards, it is appropriate that we ensure that such standards are specified. To say that they may be set is just a little bit loose. It does not provide a timeline. It is important that the commission be obliged to specify minimum quality-of-service standards. It is a simple amendment replacing "may" with "shall".
Amendments Nos. 55 and 56 address an issue I feel really strongly about because it is one I have encountered for a long time, even when I worked in one of my previous roles before entering the Oireachtas, that is, when I worked with the organisation Older and Bolder, which worked with older people's organisations across Ireland. I am conscious of the wide digital divide we have and the significant gap with regard to people's ability to access information. These amendments insert language on "the need to provide offline, telephone and in-person channels" in order that it is not sufficient to only have online channels for customer complaints or customer service. There must be offline, telephone and in-person channels. These amendments related to section 37 and the idea of minimum quality-of-service standards. I reiterate that these service standards are a core part of the legislation. Everything that comes later in the Bill leans on them. It is really important that we get this right from the very beginning and that the minimum service standards address the issue of offline access and having a telephone number you can contact. By ensuring that those standards are as robust and customer-focused as possible, we can ensure the commission has teeth in enforcing genuinely meaningful customer service standards.
The digital divide in this country is far greater than is commonly understood. Because so many technology giants have headquarters here, there is an illusion that people are digitally capable but the 2020 report, Bridging the Gap - Ireland's Digital Divide, found that 42% of Irish people describe themselves as average or below average for digital skills and that at least 25% of the Irish population feels excluded from an increasingly digital society. EU research has made similar findings. It found that almost half the population of Ireland lack basic digital skills. Those figures are changing very slowly. It is a very significant issue. One reason we do not see it is because people find ways around it. They rely on relatives and family members to assist them when it comes to banking, dealing with Revenue, changing their phone contracts and engaging online in any other way they need to. However, that is not always an adequate solution because it compromises people's financial independence and their independence in decision-making with regard to privacy and the right to a private life. Many older people, people with literacy issues and others are dependent on others to engage with service providers on their behalf because they do not have proper access to customer support or customer services through, for example, a phone line. In all of these areas, we are encouraged to move online. People are actively discouraged from calling the company or seeking to speak to a representative at an in-person branch. We all know how long you can spend searching a website to find a number you could conceivably call. That may be fine for many people but a large portion of the population are being left behind, disenfranchised and disadvantaged as a result.
A report from Accenture in 2022 found that Ireland's digital divide worsened during the pandemic. That divide is not going away at the pace that is needed.
This legislation is an opportunity to compel companies to account to and serve all sectors of society. Whether it is preferable or profitable for them to do so should not be the requirement. There should be an obligation on them to do so. It may appeal to a company, as it seeks to slash its costs, to have only a chatbot available to deal with customer complaints. This is where regulation must apply. We cannot rely solely on market pressure to create regulation. We have seen that the direction of travel is towards the use of anonymised chatbots. I recently booked a doctor's appointment through a chatbot, which was strange. That is the route providers are going down and it requires that the State and regulations come into play. The provision of particular services must not simply be offered as a product or option. There must be an obligation on providers to offer the services.
The amendments make specific reference to telephone lines, in particular, and other communication channels. It is important to specify what is meant by "accessible". We want to ensure providers have channels in place that are accessible to all customers, including those who are not confident in using a digital mechanism such as a chatbot or other online means, to make a query about their bill, for example, or any of the other simple things a customer should be entitled to do.
Amendment No. 57 relates to an issue on which I have had correspondence, some of which I might pass on to the Minister of State. It is an issue that has been brought to my attention a lot. There have been price hikes by companies such as Eir in the recent period. Nobody would be surprised by companies raising their prices occasionally in the current high-inflation environment. What comes as a surprise to customers is that price hikes are being introduced that apply more or less immediately. Rather than the price increasing when customers renew their contracts, the increases are affecting them mid-contract. All customers uniformly in a given month, regardless of where they are in their contract and any reasonable expectations they may have had when they signed that contract, are simply being told their rates are increasing. In effect, the telephone companies are breaking the original contracts signed with individual customers by changing the terms midway through a contract period. They are obliged to offer customers the right to leave the contract without penalty but most customers either will not be aware the rates are changing or they cannot afford to switch providers when the price increases hit. If they want to switch broadband, they are looking at a joining fee, installation fee and the cost of a new modem. In effect, they are hostage to the contract they are in for the period for which it extends.
The introduction of an increase in prices midway through a contract is something that needs to be looked to and regulated against. It should be something that can only be done in the period after the expiry of a contract. If a customer signs a contract in November at a certain price, he or she should not be subject to a unilateral change by April. People need to plan their finances. Much as companies want to ensure their returns, householders want to plan their finances for the six months or year ahead. It is a bare minimum of customer protection that customers should be able to depend on the contract they have signed being honoured. This is a moderate amendment that simply gives ComReg the power to include standards regarding adherence to contract terms within the minimum service standards set out under section 37 of the Bill. It is a reasonable proposal that there be another area the commission can regulate regarding adherence to contract terms. A number of individuals have contacted me who are affected by this issue. I am sure the Minister of State does not need evidence but people have provided me with such evidence regarding their expectations and their engagement with different companies.
Amendment No. 58 seeks to strengthen the language around service standards. It specifies the use of "shall" rather than "may" in reference to the publishing of guidelines on the application of minimum quality of service standards. These provisions are a core pillar of the Bill and should be binding. The guidelines certainly should be published.
Amendment No. 59 seeks to strengthen the language around the customer charter. It is not sufficient that ComReg would regulate the sector. It is important that individual citizens - the customers we are speaking of are, in many cases, citizens who live in Ireland and whom we in the Oireachtas serve - have access to a customer charter and that they know their rights. It is important that providers be obliged to developed a customer charter by which they must abide. This would place a positive duty on the provider to state how its customers should and will be treated. It also would empower to commission to measure providers' performance against their customer charters. It would signal clearly to customers that there is a tool available to allow them to see when a provider is not living up to set standards, rather than them having to navigate each situation alone. The charter is a really positive element in the Bill and one of its empowering components. I welcome it. However, we must ensure the charter is not simply a thing the commission may require from certain actors. Rather, we must move towards a position in which all the service providers are delivering and publishing such charters.
Amendment No. 60 likewise seeks to strengthen the language around the customer charter. It specifies the use of "shall" rather than "may" in reference to the measuring of performance against the charter. This should be a binding provision. It should not be something that might only apply to providers that have a bad record, that receive complaints or about which there is a concern. It should not be seen as a punitive measure that may be applied to certain providers but as something that is guaranteed and standard. Any customer should expect to see a customer charter. It should not be an aspirational document but one with which the provider must comply in order to meet the required standard.
These amendments are a response to the positive parts of the Bill, which are around potentially strengthening the rights of citizens and customers and ensuring people feel empowered when dealing with multiple actors. At the moment, people are required to navigate their engagement with these companies in dealing with day-to-day issues in their lives. They must be empowered in such engagement. The provisions in the Bill are potentially positive and I hope the Minister of State appreciates that this suite of amendments is simply seeking to strengthen further those components.
I thank the Senator for putting forward these amendments. I propose to accept amendment No. 60 but not amendments Nos. 54 to 59, inclusive.
Amendment No. 54 would frustrate the purpose of a section providing for a minimum quality of service. The aim of the provision is to provide a tool for ComReg to use when necessary and if the market does not provide acceptable quality-of-service standards. It is not intended as a tool to be used to set all the standards all of the time. The amendment would require ComReg to intervene in the market even when doing so is not immediately necessary. Intervention by ComReg needs to be justified and proportionate to the issue. If there is no evidential basis justifying the need to set standards, there should be no intervention by the commission in this manner. Similarly, in respect of amendment No. 58, as it is not proposed that there be a requirement to set minimum quality-of-service standards, if no standards are set, there will be no requirement for guidelines.
Regarding amendments Nos. 55 and 56, determining what constitutes an appropriate channel when setting minimum standards should be a matter for ComReg. The provision should also be flexible to allow the commission to set minimum standards that are justified by the needs of consumers. These obligations should be capable of developing through time. While it may be necessary today to provide in-person channels, that may not always be the case. ComReg is independent in the exercise of its functions but it has as one of its objectives the promotion of users' interests. It is the appropriate body to determine which customer service channels are required for consumers. Any action taken by ComReg in this respect will need to be justified and consulted upon, thereby providing the evidential basis for the imposition of any standard. It should be noted that ComReg provides a detailed mandate to all operators at this time such that they must provide their customer service in a way that is useable by, for example, people with disabilities.
In respect of amendment No. 57, which would include a new category of minimum service that could be set, it is unclear how a minimal standard could be set for changing contractual terms or how we would set a minimum standard for increasing prices. In any event, consumer protections in this regard are set out in SI 444 of 2022, which provides that if the contract change is to the detriment of the consumer, the consumer will have a right to exit the contract. This includes a contract change to increase the price of a service. The end-user rights provisions of the code involve maximum harmonisation provisions. It is not permissible to set different standards in these areas where it is not explicitly provided for in the text.
Amendment No. 59 relates to the customer charter. I do not propose to accept the amendment. The customer charter could include information on quality of service. The publication of information on quality of services is provided for in Article 104 of the European electronic communications code and will be transposed in section 36 of the Bill. The Commission has advised member states that it is for national regulatory authorities, which is ComReg in Ireland, to determine whether information on quality of service can be published. It is not permissible for member states to mandate such publication as to do so would fetter the discretion of the national regulatory authority. Given the potential for overlap between the publication of quality of service information and a customer charter, it was felt it would be preferable for the requirement to have a customer charter in place to be at the discretion of ComReg.
I will accept amendment No. 60 and I thank Senator Higgins for suggesting it.
I thank the Minister of State for accepting amendment No. 60. It is important it will send a signal about the seriousness with which the customer charter should be treated. I still have concerns. I appreciate the Minister of State's point on there being a balance with regard to the discretion of ComReg. It identifies the areas. There is also the fact that, ultimately, one of the things ComReg will do is respond to areas indicated in legislation. There is a reason there are provisions with regard to disability access. It is because the EU web accessibility directive has required it. It took a directive to make this start to happen. It was not a simple response to the needs of customers. Those who are not particularly empowered online are not those who will necessarily take part in consultations. I am not sure what consultations ComReg does but I am pretty sure they are not phone consultations. I am pretty sure that if it does consultations, they are probably digital consultations, as most are at this point.
We have a duty as public representatives and legislators to reflect and communicate where we think there is an area that needs regulation. The detail of this regulation we may well transfer to a body such as ComReg, but the identification of a social need and a public good is something we are entitled to do. It is appropriate that we try to it. This is why there is a number of areas we already list and identify as being areas where they may be regulation. The Minister of State has said he will not accept the amendment to change "may" to "shall". It is important to identify these issues.
The phrase "direction of travel" is very worrying. We saw this language used in the attempt by the banks to use the fact that people did not go into branches in person during a pandemic to justify that people no longer wanted to have in-person access to their banks and that they were all very happy to move online. We knew this was not the case. There were significant impacts in terms of financial independence and abuse during the time when people were not in a position to access in-person services and often had to rely on others to access their finances online. I am quite serious about this issue. If we are looking at 42% of the population, it is not a small component of people.
I am precisely concerned about a regulator being in conversation with various actors We know that often there are a large number of movers in a sector who simply declare that a new mechanism is under way and technology has moved on. For example, now that we have chatbots, it may be suggested we know longer need to have somebody at the end of a phone. There is this patronising suggestion that people miss having someone speak to them in sentences. We may have a chatbot that says, in response to someone saying "How are you?", that it does not understand the point versus having somebody who can listen and respond to people. It is not the same thing. We are seeing strong bad analysis by actors in the sector with regard to the needs of the public. In this regard I urge the Minister of State to consider this, even if he does not like my phrasing of "offline, telephone and in-person channels". Perhaps there is another phrasing I will use on Report Stage. It is vital it remains. Even if it were not 42% of the population and it were 10% of the population, it would be important that it remains and that it be regulated. I urge the Minister of State to reconsider this point.
With regard to the question of rights, the fact there was a statutory instrument in 2022 points to the level of concern about the changes in contracts to which people are being subjected. The problem with the order is that it does not address the nub of the issue. As I have said previously, there are joining fees and installation fees. There are significant fees. People decide between one company and another with regard to what contract they want to sign up to. They choose to sign a contract with a company for 12 months, 18 months or six months. They know the company will not let them change their perspective halfway through on what the deal should involve. Why should the company be able to change the rules part of the way through? Simply saying people are released from the contract at that point and that they can go again means they will face more joining fees. People might well have made a different decision back in the January when they signed the contract. They may well have chosen a different company then had they known the one they did choose would change the rules in April and again in November. This is significant. The burden of additional costs of joining and an additional process is being put on the citizens who sign up to the contract.
I do not believe the statutory instrument in place is adequate to address it. I do not believe it is an adequate measure. I would appreciate if the Minister of State indicated on Report Stage whether there are plans for a further statutory instrument. It is not sufficient that people are told they can leave. Effectively, if we continue with this practice, the State is allowing and rewarding a switch and bait. Companies sign up people on a low contract. We all know the force of inertia is one of the strongest forces relied on in marketing to keep people in contracts even if the conditions disimprove. We are in danger of allowing and permitting a perverse incentive for companies to engage in poor marketing practices.
Will the Minister of State consider these two issues between now and Report Stage? Even if he does not like the phrasing of the approach I have taken, will he consider whether there are ways, perhaps through a narrowing of the language on the offline provision or even to a supplementary statutory instrument, to address these issues? I would appreciate it.
Amendment, by leave, withdrawn.
I move amendment No. 55:
In page 31, line 1, after "channels," to insert "and the need to provide offline, telephone and in-person channels,".
Amendment put and declared lost.
I move amendment No. 56:
In page 31, line 7, after "channels," to insert "and the need to provide offline, telephone and in-person channels,".
Amendment put and declared lost.
I move amendment No. 57:
In page 31, between lines 26 and 27, to insert the following:
"(f) adherence to contractual commitments, including—
(i) instances where a provider changes the terms of a contract during the contract period, or
(ii) instances where a provider increases their pricing during a contract period;".
Amendment put and declared lost.
I move amendment No. 58:
In page 32, line 3, to delete “may” and substitute “shall”.
Amendment put and declared lost.
Section 37 agreed to.
SECTION 38
I move amendment No. 59:
In page 32, line 7, to delete “may” and substitute “shall”.
Amendment put and declared lost.
I move amendment No. 60:
In page 32, line 20, to delete “may” and substitute “shall”.
Amendment agreed to.
Section 38, as amended, agreed to.
SECTION 39
I move amendment No. 61:
In page 33, between lines 37 and 38, to insert the following:
“(10) Where a provider prepares a compensation scheme it shall ensure that end-users are informed, in a clear and comprehensible way, that the compensation scheme does not prejudice their right to pursue compensation in respect of a specified failure by other legal means or proceedings.”.
This amendment creates a specific positive duty on a provider publishing a compensation scheme to inform the consumer that this compensation scheme does not prejudice their rights to further compensation by other legal means. This section is again generally quite tightly written and thorough in respect of clarifying what the duties are on providers in terms of compensation schemes. This is all very welcome. The section also clarifies that acceptance of compensation does not prejudice consumers' right to pursue compensation by other means.
The provisions of this section are good in terms of making it clear that it does not prejudice these rights but there is a slight gap in that many or most consumers will not be reading this legislation. Although the legislation is, therefore, clear on the obligations around compensation schemes and that these do not prejudice any other legal action, there is a slight gap whereby there is not an obligation for the consumer to be informed of this situation. There should be a positive legal duty on the provider to inform the customer not just around the compensation schemes that may be available to them but also that this does not prejudice their other options. It is about that second part in the section to ensure that the consumer, who is the relevant party here, is aware of this right. It is quite possible in this context that consumers may assume that the only thing they are entitled to is whatever form of compensation a company may have offered to them. Most consumers will not be talking to lawyers or necessarily reading the legislation. They will be asking what their rights are and what they are entitled to in these cases and they may just get told they are entitled to a compensation scheme, full stop. This amendment is in the spirit of this section and of its intention and it is just trying to ensure the section has the desired effect.
Before I bring in the Minister of State, I welcome Deputy O'Connor to the Gallery. He is always very welcome to join us here in the Upper House. With him is a friend, Mario, whom I understand is originally from Romania and now living in Cork North-Central. He is also very welcome. Separate from sometimes being the Acting Chair, I am also the convener in this Parliament of the Ireland-Romania interparliamentary friendship group, so it is always nice to see visitors here and especially those from Romania. He is very welcome and I hope he has a very nice evening in Leinster House. I call the Minister of State.
I agree with the intention of this amendment and I understand it, because we could have a situation where consumers are receiving automatic compensation payments and then think that is it, they are being fobbed off and do not understand their rights are not curtailed. I agree with this proposed amendment, therefore. I think it is a good one and I accept it.
Amendment agreed to.
Section 39, as amended, agreed to.
Section 40 agreed to.
SECTION 41
Amendments Nos. 62 and 63 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 62:
In page 35, line 27, after “non-discriminatory” to insert “, and which must be accessible through offline as well as online channels, including by telephone or in-person”.
Amendment No. 62 relates to section 41, which requires that providers have in place procedures for dealing with complaints that are fair, accessible and prompt. This section is a regulatory provision and it is subject to the powers of enforcement which come later in the legislation. It is again a positive provision but because it is so crucial in the context of the regulatory provision which compels providers to have accessible complaint-handling mechanisms, it is important there is no ambiguity around the wording in terms of "accessible". This small section on its own bears a huge load in terms of the effectiveness of the Bill. It provides the bulk of protections for consumers against poor complaint-handling processes. This amendment, therefore, seeks to include specific wording to clarify what is meant by "non-discriminatory" and clarifies that "non-discriminatory" channels for complaints "must be accessible through offline as well as online channels, including by telephone or in-person". This is intended again to ensure these processes are accessible to the 42% of the population who may not be accessing measures digitally. This is important because it concerns accessibility to complaints-handling processes. It is not, therefore, not just around a general standards provision but situations where there might be complaints.
Amendment No. 63 ensures that when providers are developing their own codes of practice around complaints handling that they would specify that offline channels will be offered for the making of complaints. Again, this is another layer of protection to ensure there is no interpretation of the term "accessible" which leans solely towards what is profitable rather than what is good for the customer. I refer to something that may, perhaps, have a minimum standard that meets the minimum web accessibility directive standards. These are accessibility standards and they are important, but they relate solely to web accessibility. This amendment is to ensure that does not become the interpretation of accessibility and that the issue of access for those who do not have capacity digitally is not left unconsidered. My amendment is intended to ensure we have clarity in this area. I do not think there is a definition of "accessibility" in the Bill. The term has different definitions, which are largely associated with the important rights people have under the UN Convention on the Rights of Persons with Disabilities. The concept of access has a wider frame in this context, though, and refers to access for persons through the means by which they are best able to access information or their rights. I am again proposing language to try to strengthen this aspect. If the Minister of State may have other language which he thinks could address this same concern, then I am open to that.
I thank the Senator. I do not propose to accept these amendments. Section 41(1) imposes an obligation on operators to establish procedures for dealing with complaints in settling disputes. Section 42(1) requires operators to have a code of practice in place. Should it be necessary for further detail to be put on these obligations to further elaborate on the requirement that they be accessible, ComReg has been given power in both instances to specify requirements for the purpose of ensuring compliance with the section, which will include the requirement that the procedures established are accessible. It is important that ComReg be given appropriate latitude to use this tool in future, if this is necessary. It has as one of its objectives the promotion of users' interests. It is, therefore, the most appropriate body to determine what, if any, further specification of this obligation is required. Any action taken by ComReg in this respect would need to be justified and it will need to be consulted upon, providing the evidential basis for the imposition of more specific obligations.
We have had this discussion previously. I think there is a balance between the discretion of ComReg in this regard and our obligations as legislators to ensure that the key provisions regarding access in legislation we put forward are effective. If there is, therefore, a concern, and in this case a significant one, that 40% of the population may have difficulty in accessing certain forms of access, then it behoves us to ensure legislatively that these provisions in the Bill are effective and that where we delegate powers we do so with clear expectations. Regarding section 41, I note that section 41(3) also has a capacity for the Minister to prescribe measures to be taken by providers for the purposes of giving effect to the section.
Will the Minister of State indicate whether the Minister would use his or her powers - in this case his powers - under section 41, in cases where the requirements specified by the commission do not address the issue of offline access to ensure that gap is addressed?
Yes, subject to consultation.
I thank the Minister of State.
Amendment, by leave, withdrawn.
Section 41 agreed to.
SECTION 42
I move amendment No. 63:
In page 35, line 38, to delete “the” and substitute “both offline and online”.
Amendment put and declared lost.
Section 42 agreed to.
Sections 43 to 135, inclusive, agreed to.
SECTION 136
Amendments Nos. 64 to 66, inclusive, are related and may be discussed together.
Government amendment No. 64:
In page 98, line 34, after “Expenditure” to insert “, National Development Plan Delivery”
These amendments are to reflect the new ministerial title and change it to the Minister for Public Expenditure, National Development Plan and Reform.
Amendment agreed to.
Government amendment No. 65:
In page 99, line 7, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Government amendment No. 66:
In page 99, line 16, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 136, as amended, agreed to.
TITLE
Government amendment No. 67:
In page 9, line 17, after “by” to insert “certain”
Amendment agreed to.
Government amendment No. 68:
In page 9, lines 17 and 18, to delete “considered high-risk”.
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Now.
Is that agreed? Agreed.
Bill received for final consideration.
When is it proposed to take Fifth Stage?
Now.
Is that agreed? Agreed.
Question proposed: "That the Bill do now pass."
I did not realise the House was taking Committee and Remaining Stages today. I am disappointed as it does not allow me to bring back some of my amendments, which I had hoped to do.
It was agreed. No one objected.
I acknowledge that. I simply regret that fact.
I thank the Senators and my officials for their help on this Bill.
I will allow Senator Carrigy, who is somewhat late, to say something but it will have to be very brief.
I thank the Cathaoirleach Gníomhach. Specifically in respect of the Bill and the element which deals with the post office network - as the House is aware I am a postmaster myself-----
The Senator could have made a speech on Second Stage when there was time then for it.
-----I want to put on record on behalf of all of the members of the Irish Postmasters' Union my thanks to the Minister of State, Deputy Naughton, and the Department, in particular, for the support in funding which has been put in place to sustain the network over, I believe, the next three years. The post office is at the heart of every single community, not just in rural Ireland, but in urban areas also, and it is important that it is supported. I thank the Government and my colleagues in the Seanad for having passed this Bill and I look forward to seeing it passing through Dáil Éireann as swiftly-----
I believe it has already been through Dáil Éireann and it is fully-----
It needs to return there.
The Minister of State is correct. The Bill needs to return there as it has been amended.
Question put and agreed to.
When is it proposed to sit again?
At 10.30 tomorrow morning.
Cuireadh an Seanad ar athló ar 7.41 p.m. go dtí 10.30 a.m. Dé Céadaoin, an 15 Feabhra 2023.
The Seanad adjourned at 7.41 p.m. until 10.30 a.m. on Tuesday, 15 February 2023.