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Dáil Éireann debate -
Thursday, 18 Apr 2002

Vol. 552 No. 2

Communications Regulation Bill, 2002 [ Seanad ] : Committee and Remaining Stages.

Section 1 agreed to.
SECTION 2.

As amendment No. 2 is cognisant on amendment No. 1 and amendment No. 16 is related, therefore, amend ments Nos. 1, 2 and 16 may be taken together by agreement.

I move amendment No. 1:

In page 9, subsection (1), lines 12 and 13, to delete "(other than section 46 and Part 5)”.

These amendments clarify the entry into force of the various provisions of the Bill. The amendments to sections 2 and 4 are technical. On the establishment day the commission will be established, the office of the director will be abolished and the transfer of functions, property and staff will take place. The amendments will serve to remove any doubt about the interpretation of these matters.

Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."

(Mayo): Section 2(1) states:

"associated facilities" means those facilities associated with either or both–

(a) an electronic communications network, and

(b) an electronic communications service, which enable or support the provision of services by way of that network or service, and includes conditional access systems and electronic programme guides;

Should the provision of electronic programme guides require regulation by the communications regulator? Given the broad scope of facilities in this section they would come exclusively under the regulatory competence of the communications commission. Does this not indicate that the commission will become a "Big Brother" when dealing with the guides?

I understand the Deputy's concern as the provision is specific. New directives were agreed in Brussels before Christmas and this aspect was included. We hope to transpose the directives by statutory instrument.

The question of placement of stations arises with electronic programme guides. For example, if a station is not featured on the first page there is little chance it will be accessed. This has been an area of dispute surrounding the placement of the free to air services obtained in Ireland, namely, RTE 1, Network 2, TV3 and TG4. While it may be finicky to dwell on this, there is an important principle involved in terms of where the indigenous free to air services are placed on programme guides.

There is no doubt that the placing of programmes is conducive to usage. However, this aspect is included in the directive.

Question put and agreed to.
Section 3 agreed to.
SECTION 4.

I move amendment No. 2:

In page 10, line 14, to delete "(other than section 46 and Part 5)”.

Amendment agreed to.
Section 4, as amended, agreed to.
Sections 5 to 7, inclusive, agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

(Mayo): As sections 8 and 9 are linked, I will address both. Section 8 deals with the dissolution of the Office of the Director of Telecommunications Regulation while section 9 deals with the transfer of functions. Section 9 fails to make reference to the officers of the ODTR. The reference is to the officers of the Minister. This does not appear to provide for continuity in the scenario presented, the transfer of functions from the Minister to the ODTR in the Telecommunications (Miscellaneous Provisions) Act, 1996 and transfer of those functions to the commission. For the sake of continuity, one would expect to see a reference to officers of the ODTR and-or the Minister becoming officers of the Commission for Communications Regulation and-or the Minister. Furthermore, there is no definition of “officers” although a distinction is made later in the Bill between officers, staff and consultants. That appears to be an omission.

I see the Deputy's point about continuity.

Mr. Higgins (Mayo): It fails to make reference to officers of the ODTR. The references are to officers of the Minister.

There is a direct translation from the office of the regulator to the commission. Section 20 provides that: "Every person who immediately before the establishment day is a member of the staff of the Director shall on that day become a member of the staff of the Commission."

(Mayo): I accept that.

They formally transfer on that day. The other point referred to the definition of an "officer". I expect it is the common definition used throughout any Department or legislation. I presume the parliamentary counsel did not think it needed to be defined. In a school the principal would be the officer and the teachers would be the next line down.

Is there a definition in the interpretation Acts?

I do not know. I have often come across the term in legislation and it has never been defined, at least not that I know of. However, there might be a definition in the interpretation Acts. Deputy O'Shea's colleague and former Minister, Mervyn Taylor, introduced a Bill dealing with interpretations. An officer is generally in charge of something or somebody.

(Mayo): The Minister might recall that some time ago I brought to her attention particular difficulties in relation to the existing operation vis-à-vis officers, staff and consultants.

I remember. I expect that a loose definition of "officer" would be somebody who is in charge of an operation.

Question put and agreed to.
Amendment No. 3 not moved.
Section 9 agreed to.
SECTION 10.

(Mayo): I move amendment No. 4:

In page 11, subsection (1)(b), line 33, before “radio” to insert “use of”.

This is a small amendment in order that the provision would read: "to manage the use of radio frequency spectrum and the national numbering resource, in accordance with a direction under section 13". It would insert the phrase "use of". It should refer to the use of the frequency.

To limit the functions of the commission to the use of radio frequency spectrum would be to restrict the commission's functions in this regard to licensing only and not allow it to allocate the frequency spectrum. The function of allocation of radio frequency spectrum was conferred on the regulator under the 1996 Act. The amendment would limit the functions conferred on the first regulator under section 36 of the 1996 Act with regard to the commission. What prompted the Deputy to table the amendment? I am not sure what his intention is.

(Mayo): The section provides that the function of the commission shall be “to manage the radio frequency spectrum. . . ” The amendment refers to the use of the radio frequency spectrum rather than the spectrum itself. That means how it operates or how it would function. The amendment was not suggested to me, but I thought it would make sense to refer to the use, how it would operate and be used. If the Minister has fundamental objections to the amendment or if it would be restrictive or confine in some measure the powers of the commission, I do not have a problem.

I understand the reason the Deputy proposed it. However, it could, in law, provide that the commission would only be allowed to deal with the use of the radio frequency rather than the radio frequency spectrum, which has always been and is an important issue. It is a broader and more proper remit for the commission.

Amendment, by leave, withdrawn.

(Mayo): I move amendment No. 5:

In page 12, subsection (1), lines 1 to 4, to delete paragraph (e).

The amendment seeks to delete paragraph (e) which states: “to ensure compliance, as appropriate, by persons in relation to the placing on the market of communications equipment and the placing on the market and putting into service of radio equipment”. Nowhere in existing EU telecommunications legislation do the directives vest national regulatory authorities with such power. If the power in section 10(e) of the Bill is exercised by the communications commission in respect of the existing Irish market for communications and radio equipment imported from member states, it will be a breach by Ireland of its legal obligations in Community law under Article 28 of the EEC treaty.

The wording for this function appears to have been lifted from the Wireless Telegraphy Act, 1926, without too much consideration having been given to the EU angle. It is a breach of Article 28. In the Laurentiu decision in the Supreme Court, Keane C.J. cast serious doubt on the constitutionality of the 1926 Act. Several commentators believe that if it were challenged, it would be found to be unconstitutional. The role of the communications commission should be limited to prosecuting and prohibiting the unlawful use of spectrum by users of the equipment, but the actual importation of the equipment itself would seem to cut across Article 28 of the EEC treaty, that is, the free movement of goods and persons.

The Laurentiu decision related to the mast on the cliff in Clare, did it not?

(Mayo): Yes.

I listened to the argument advanced by my colleague, Deputy Jim Higgins. Reading the section an issue occurs to me regarding health and safety factors relating to communications equipment which we all meet in our constituencies. Will the Minister clarify whether this subsection in the section on the functions of the new commission has relevance to health and safety factors related to the telecommunications or communications equipment? I hope that this in some way refers to standards being implemented so that there is no doubt that conditions laid down are in line with World Health Organisation standards or whatever is necessary in that area to ensure public health and safety.

To answer Deputy O'Shea first, I do not know if it overtly has any such relevance. On health and safety, the Deputy is correct that this relates to standards but not to the details. The Deputy is asking if the commission goes into the details of health and safety standards in any production of information technology equipment and if it underpins it, authorises it or has authority over it. I very much doubt that it would have authority or power to validate matters such as that but health and safety standards are referred to the regulator and the commission in many cases.

The debate on health, particularly with regard to masts, equipment and how people regard those matters, is ongoing and lively. I do not have the answers to it and it appears that the Department of Health and Children does not have them either. That Department quotes the World Health Organisation on the relevant levels.

No doubt radiation is a topic of great interest to people but I cannot give a guarantee on that matter. The current commission goes by WHO standards on levels of radiation and all the standards which are trotted out as being part and parcel of the safety environment for provision of such equipment and the new commission on regulation will also go by them, yet again and again anecdotal evidence is brought to the attention of Members of the House. There is then the inherent conflict in having 600 or 700 gathered in a huge community hall demanding that there not be a mast within a particular area, but with mobile telephones going off constantly throughout the meeting. Does one want modern technology and, if so, can the regulator, and the planning authorities in the case of the erection of masts, ensure that they are not near houses and schools? Often this is difficult to achieve.

If we do not encourage and bring in such modern technological usage, can we march forward as a nation? However, there are strong health worries about a production such as this. Both Etain Doyle and the new commission would have responsibility in that regard, but not in saying categorically that such an instrument or provision is entirely safe because I do not know who could say that.

To turn to Deputy Higgins's amendment, it seeks to delete paragraph (e), which states: “to ensure compliance, as appropriate, by persons in relation to the placing on the market of communications equipment and the placing on the market and putting into service of radio equipment.” The Deputy wondered, in light of the Laurentiu decision, if this would be unconstitutional.

Section 12(1)(e) clarifies that the commission will have the functions conferred on the director under the European Communities Radio Equipment and Telecommunications Terminal Equipment Regulations, 201 – S.I. No. 241 of 2001. Therefore the removal of this provision, as put forward by the Deputy, will not change the status quo as the commission will have the functions under the statutory instrument in any event. The Deputy said that because this is in the Bill, it would be a new function, but it is only a clarification of the function which the regulator has anyway and which the commission will have – the regulator has that function under a statutory instrument introduced last year.

(Mayo): The reason I raised this matter and tabled this amendment is that I was informed by a former member of the staff of the ODTR who worked in this section that nowhere in the existing EU telecommunications legislation do directives vest the national regulatory authorities with such a power to restrict the free movement of goods and that there is a possible conflict with Article 28 of the EEC treaty.

I understand the point the Deputy is making.

Mr. Higgins (Mayo): If the Minister is satisfied that it is not in conflict with it—

It is a fair point to raise, but this is only a clarification. The functions are already conferred on the director. The Deputy is saying that there is a conflict in regard to the issue of the free movement of goods and there is a previous recommendation in the High Court or the Supreme Court, but I am informed that the removal of this provision will not change the status quo. I expect that we made such provision to clarify the status quo, to give it the underpinning of law as distinct from the underpinning of a statutory instrument.

I still think that this is a little muddled. The functions of the commission shall be "to ensure compliance, as appropriate, by persons in relation to the placing on the market of communications equipment and the placing on the market and putting into service of radio equipment." With what will it ensure compliance? It states "compliance, as appropriate," but it does not state with what it will ensure compliance. It is a general statement in terms of placing equipment on the market or putting equipment into service. It talks about compliance but does not clarify with what one will be complying – it just states "as appropriate".

If there were WHO standards in which people put their faith in this area, the commission would adhere to those standards. There would also be standards of invention, of the production of such equipment. I imagine the commission would have to adhere to technical standards, WHO standards and ISO standards of production, with which more and more companies are asked to comply. These are the various standards which would be appropriate in different connections. That is all I can offer the Deputy from my knowledge.

There are various EU compliance measures on companies operating and producing goods in the European market and they are growing in complexity all the time. There would have to be adherence to all those various standards of excellence, where appropriate, in regard to particular goods or products. One could not prescribe the standards to which every single product would adhere but there are appropriate European standards of equipment.

I do not wish to labour the point. I understand that the health aspects are dealt with through the Department of Enterprise, Trade and Employment and that Forbairt is the body which does the investigation in that regard.

I want to ascertain if "compliance, as appropriate" would refer to whatever health and safety standards apply as per guidelines in other Departments, as well as EU standards, which the Minister mentioned. Is it the Minister's view that "as appropriate" applies to standards of any Government Department or agency that apply to this sort of equipment, and that it is a catch-all for the standard? I am not being critical of the Minister in this matter, but that is a little bit slipshod in regard to the various sorts of standards and guidelines that exist across a wide range of bodies. Maybe something like this should give rise to a statutory instrument or some other method of clarification.

In effect, this follows statutory instruments of various Departments and various European directives which lay out standards of compliance and adherence. In the Department of Enterprise, Trade and Employment there could be 20 standards, to which it should adhere. There could be WHO standards and others in the Department of Health and Children to which it should adhere. The range of products used in the making of such a product would give rise to many other supplementary types of adherence. It would not be apposite to list all that in a line such as the one to which we are referring. "Appropriate" means appropriate to any of the relevant Departments implementing the various directives in all of their phases.

Increasingly, there is a high range of quality standards to which companies making products, if they hope to sell them, must adhere. The Deputy knows that the firms who get the ISO regard it as a badge of honour. It is a very regular practice for companies, as they carry out their work, develop their products or services and implement them, to seek it and go through a rigorous audit to do so and to keep it. To list everything would be very difficult. I accept Deputy O'Shea's point in this regard, but changes and additions are made almost by the minute.

Previously, I made contact with Departments to try to establish, in respect of health concerns over the sort of communications equipment in question, what exactly the regime was and where responsibilities lay. It was quite a difficult exercise. I am not sure I ended up with a comprehensive picture. My concern is that I will be able to answer questions if some constituent asks me about the safety regime.

When I took up my current position, Dr. Tom McManus, a very fine person to whom the Deputy might have spoken and who deals with many matters, was very interested and remains very interested in the health outcome of technology and the use of technological equipment. One job of the Department of Health and Children is to monitor health risks. Throughout the UK, Europe and the world, one will find people drawing attention to electricity poles and high-tension wires. They will say wires should be under ground, not over ground, and that such things are injurious to health. One comes into one's kitchen in the morning and hears one's refrigerator and cooker humming and wonders whether there should be such a hum. I do not know if anybody can give a definitive statement as to whether one's microwave, hairdryer, cooker or whatever is emitting signals suggesting that something is wrong. However, is one going to do without one's electric cooker? Is one going to do without one's hairdryer – I suppose one could do without that all right – or is one going to do without other equipment that one has come to depend on?

Equally, are we going to give up our mobile phones? We all seem to love them. Yet, we wonder about masts and give out when we try to change from an 086 prefix to an 087 prefix and back to an 086 prefix and cannot get coverage in many areas. One cannot have coverage without masts. Are masts injurious to health? That is the eternal question. Do we take four steps backwards and say we will do away with all those things? Where would that end? I get dozens of letters from people who are genuinely worried about the health risk of all these appliances and modern technological aids. Do we want to go back to the time caveman? I have no answer to the question.

Amendment, by leave, withdrawn.
Question proposed: "That section 10 stand part of the Bill."

Referring back to the issue both Deputy Jim Higgins and I raised on Second Stage in regard to—

To what is the Deputy referring?

I am referring to section 10(2)(a). As I read it, the Minister may, “after consultation with the Commission, by order, transfer to the Commission such additional functions as the Minister considers appropriate, being functions that are incidental, supplemental or consequential to the functions conferred on the Commission under this section.” Would that give the Minister of the day the powers to give the additional function of mandating flat-rate Internet access? Is that a way of covering the difficulty on which we reached a measure of agreement during Second Stage?

Is that amendment No. 7?

We are discussing section 10.

I know what we are talking about, but is there not an amendment in the name of Deputy Jim Higgins on this issue? Deputy O'Shea has a Report Stage amendment on the same issue.

The Deputy is referring to section 10(2)(a) which refers to the Minister transferring additional functions to the commission. In a broad sense, the Minister of the day could transfer such additional functions as the Minister considers appropriate, “being functions that are incidental, supplemental or consequential to the functions conferred on the Commission under this section”. The reference to “under this section” is significant, that being section 10. The functions would have to be consequential and come under that section.

I do not think I can order or mandate, but we hope to come to some agreement. My proposal may seem to be watered down to the Deputy but it may be the best we can do in respect of amendment No. 7 in the name of Deputy Higgins. It would encompass what the Deputy has tabled for Report Stage also. I expect we will come to that in a few minutes. The Minister's functions are limited to those outlined from section 10(1) to the end of that section.

With regard to what the Minister has just said, the words "incidental, supplemental or consequential" would give some room for manoeuvre in that respect in the context of earlier sections. However, the Minister has a proposal relating to Deputy Jim Higgins's amendment No. 7. Therefore, I will leave it at that for the time being.

Question put and agreed to.
Section 11 agreed to.
SECTION 12.

(Mayo): I move amendment No. 6:

In page 12, subsection (1)(c), line 36, to delete “a” and substitute “an efficient and competitive”.

If this amendment were made subsection (1)(c) would read “to promote the development of the postal sector and in particular the availability of a universal postal service within, to and from the State at an affordable price for the benefit of all users.” On Second Stage I alluded to the need for An Post to become more competitive. I tabled this amendment because we must promote competition in the postal sector and set down clear objectives for the commission. During Question Time before the Easter recess, I raised the issue of the consequences for An Post of the proposed European Union liberalisation directive. An Post would need to sharpen up its act in terms of being efficient and competitive.

In terms of efficiency, major problems still exist with the delivery of mail. Despite the direct rail link, it can take up to three days for a letter to get from my office here to my constituency office in Ballyhaunis, County Mayo, which is only 123 miles away. There are problems with sorting offices, transit and so on, despite the fact that SDS is an improvement on the previous position. God be with the days when we had the "thrupenny" stamp which guaranteed that a letter posted in any part of the country would reach its destination within 12 to 14 hours. The objective of the amendment is that the service should be efficient and competitive.

If I post a letter in Dublin to Athlone, 70 miles away, before 10 a.m. on a Wednesday, it will not get there until midday on Friday. I often address a letter to myself to see how long it takes to be delivered. I know An Post and its employees are doing their best, but the length of time it takes to deliver letters is extraordinary. I do not know what Deputy O'Shea can tell us about the length of time it takes letters to get from Dublin to Waterford.

The amendment seeks to delete, at subsection (1)(c), line 36, “a” and substitute “an efficient and competitive”. The regulator got her powers in regard to the postal sector under a European directive for the development of the internal market of community postal services and the improvement of quality of service – statutory instrument 130 of 2000 applies. Neither the EU directive nor the statutory instrument gives the regulator the power to monitor efficiency. The directive refers to the provision of a universal service, to which we all aspire, and the wording of section 12(1)(c) reflects the intent of that directive.

Extending the objectives of the commission to promote the development of an efficient postal sector is not envisaged by the directive or by the statutory instrument. The main focus of the direc tive is on fair competition and quality of service. Efficiency is an internal matter for the management of the company. If we were to regulate efficiency it would involve much more detailed intervention in the operations of a company.

The regulator, who is now the appointed postal regulator as well as the telecommunications regulator, has made major interventions in policy within the postal sector. She is in command of pricing and has made a decision on a price increase for postal services. In terms of handling her brief on postal matters, she has, understandably and correctly from her point of view, sharpened the relationship between herself and An Post, as evidenced by the excellent chief executive of An Post, John Hynes, who is not afraid to put himself into the public arena. He has interchanges with the regulator who can afford to be equally sharp, as befits her job. The way the regulator interprets the directive will surely lead to a better service because she insists on quality of service. When the three of us met recently at the opening of the new postal facility on the Naas Road, we had a good discussion about that.

On the onset of competition in the postal market – I gave an answer in the Dáil about this to Deputy O'Shea – we agreed a measure some months ago in Brussels. We are in the first phase now, leading on to the second phase in 2006, with the final phase in 2007 or 2008. No country has sought a derogation. Some countries wanted the measure introduced more rapidly while others had the opposite view, but in the end it was agreed by common consent.

There is no doubt that competition is being introduced as per the agreement in Brussels. Another Government might decide to introduce it more quickly, although there will not be a derogation because we all agreed to the timeframe. Some countries have gone far ahead of what we all agreed in Brussels. What we are doing is in line with what was agreed in Brussels, namely, a gradual liberalisation of the postal market. The stages of that liberalisation, as laid out in the directive, will take place between now and 2009.

The regulator is adhering to the directions in the directive giving her responsibility for the operation of the postal market. She will ensure, for instance, that my letters from Dublin to Athlone will arrive within a precise period, as will those sent by Deputies Higgins and O'Shea to Ballyhaunis and Waterford. This is similar to me coming in here and asking why the No. 11 bus to UCD was late yesterday morning. We could not possibly go into precise details, but the regulator's broad remit in dealing with the postal sector will ensure a sharper carrying out of duties and an improved quality of service. She has already locked horns with An Post about quality of service, which is what we are all talking about here.

All of these matters have implications for staff and the way they conduct business and there is no doubt they will be subject to the commission's regulations. I agree with what Deputy Higgins said. We all want a more efficient service and I am sure that is what An Post wants. It knows it will eventually have to face full-blooded competition. The universal service is agreed to by all so I am not prepared to accept the Deputy's amendment because the application of such a provision could have an untoward effect on the gradual liberalisation in which we are engaged. Planned and proper liberalisation will lead in time to a much more competitive, efficient and better service.

(Mayo): The Minister said that the directive already includes the words “fair competition”. If that is the case, why object to inserting the word “competitive” and perhaps leave out “efficient”?

Because we have agreed to the timescale for the liberalisation process. I remember it vividly because I was a strong contributor to the debate at European level and we have agreed the stage three liberalisation.

(Mayo): The fact that “efficiency” is not in the directive in no way precludes us from making our own interpretation and inserting our objective here.

It would not be impossible.

(Mayo): We recently debated the Gas (Interim) (Regulation) Bill, 2001, and prior to that we had the Electricity Regulation Bill, 1998. In both of those Bills we encountered words such as “efficiency” and “competitive”. Here a similar liberalisation is taking place in the postal service. Why should we not accept the same level of efficiency and competition as we do in the gas and electricity sectors?

That is a fair point. I remember that for the electricity Bill – Deputy Jacob was responsible for the gas Bill – these things were much more sharply defined. By 2005, all countries are to have full competition in the electricity sector and we are at 40% market opening. We are not as advanced in terms of postal liberalisation. Interestingly, every single country in Europe regards the postal service as a very strong domestic issue. In the UK, because Consignia seems to want to rush ahead of the planned gradual liberalisation, there will be 30,000 redundancies within the next two months, which it is hoped will be voluntary, although I do not know whether they will be. I am all for electricity and gas being opened up much more sharply but An Post has its universal service obligations. If one receives electricity one receives it no matter whose electricity comes through the conduit – it does not really matter in the end. However, if one is in a remote area of County Kerry waiting for the postman one is very glad to see him. He or she delivers the post and that is the universal service obligation. It is a much more important issue domestically.

The usage of the words "the development of the internal market" reflects the intent of the directive and the improvement of quality. The main focus of the directive is fair competition and quality of service. The quality of service reflects efficiency in itself but the precise application of efficiency is an internal matter for the management of the company. When competition is gradually introduced, if a company is not efficient it will not survive.

Amendment put and declared lost.

(Mayo): I move amendment No. 7:

In page 12, subsection (1), between lines 38 and 39, to insert the following:

"(d) to promote the use of the internet at affordable prices.”.

This amendment gets to the nub of the issue raised by Deputy O'Shea and me, the promotion of the use of the Internet at affordable prices. We have been inundated with suggestions, proposals and ideas from various interested groups, both providers and customers, and this is the issue that has triggered the biggest response from the public. Our e-mail in-boxes and fax machines are literally jammed with faxes and e-mails suggesting that this issue needs sorting out. Leaving aside economic considerations, the heart of this issue is equity. Deputy O'Shea gave the global figure for the price of connecting to the Internet for a month and I gave the cost comparisons with other countries. We are talking about a huge obstacle to access to information which affects the establishment and development of new businesses and the opening up of huge market opportunities. We are talking about an obstacle which is leading to the restriction of access for rural areas.

If one has a proper flat-rate, broadband service one can live anywhere in the country with the same ability to access one's business or whatever sources of information one requires. We are not just talking about EU countries. For example, in Iran it costs €35 to connect to the Internet for a month; in Russia, €38; in the USA, €34; and in Ireland, thousands of euro. We are doing irreparable damage to ourselves by not tackling this issue. Has anybody – the Minister or somebody in her Department – sat down with the service providers to try to work out a deal similar to that which applies in Britain, France, Iran or Russia? If it can be done in those countries it can surely be done here. I know it is private companies which are involved, but they depend on the Government and on local authorities to facilitate them. It is an issue that must be tackled and that is the reason for this amendment. To promote the use of the Internet at affordable prices is a desirable, fundamental and necessary objective.

I will not go over old ground nor repeat any of Deputy Higgins's arguments. I want to put on the record, however, my summary of key points. I have mentioned the Forfás report on broadband investment in Ireland, but it bears mentioning again. It clearly states that creating regulatory certainty is the key to attracting the required broadband investment from operators. It also says that the passage of the Communications (Regulation) Bill in early 2002 is critical to this. It is important to empower the regulator to introduce a flat-rate interconnection package to enable competitive flat-rate Internet access. I have gone through the social arguments.

Is that what the Deputy intends to cover on Report Stage?

I am looking for a mandate. I do not think it is enough that we merely indicate that the new commission "should" do something. We need something firmer so that the word "empower"—

(Mayo): On a point of order, amendment No. 8 in my name seeks to do that.

I take the point. It is about empowering the regulator, which in this context is the new commission, to introduce a flat-rate interconnection package to enable competitive flat-rate Internet access. As Deputy Higgins pointed out, this is important on two fronts. The social considerations are hugely important to me but small businesses must also be taken into consideration. Bigger business will be able to make good deals with operators. The need for this amendment is twofold: it is important for small businesses and for all the categories we mentioned earlier. I look forward to the Minister's response.

I am very interested in those points and in answer to Deputy Higgins, we are tired of sitting down with the operators and asking them to do as he suggests. An amazing event took place this week – nobody knew apart from us that this Bill was to reach the floor of the House today. The feeling among the various companies was that it would never reach the floor of the House before the Dáil was dissolved. We have still not divined the Taoiseach's intentions in respect of the latter, but it was believed that the Bill would not be introduced with the result that everyone sat back comfortably. However, as today's newspapers show, many things happened yesterday. DSL is now ready to be rolled out and the regulator has settled her differences with the companies. The current position is that the companies love the regulator, she loves them and they love me. We reached a plateau of sweetness and harmony together on the day before the Bill was introduced because no one believed it would be brought before the Houses. They all rushed to show how good, kind and wonderful they are when, in reality, they have been tearing their hair out in recent months.

Reference has been made to other countries which have far better services and Internet access. These were provided, in the main, when companies were flush – many have since gone out of business – when there was an entirely different regime and when the outlook for the telecommunications industry was extremely optimistic. We were way behind these countries in terms of development. When we entered this area, the fortunes of the technology companies had already taken a nosedive. However, they are beginning to reassert themselves. We will be providing a sum of €165 million in three phases over a three year period – I thank Deputies Jim Higgins and O'Shea for their kind comments in that regard – for the urban metropolitan fibre optic network hubs that will be created in conjunction with the local authorities most of which have been remarkable in terms of acceding to meeting us halfway on this proposition.

Deputy Higgins's amendment proposes that we insert a new paragraph which would read "to promote the use of the internet at affordable prices." We are bringing forward an alternative to that proposal. It is remarkable that, in all the years I have been guiding through legislation in the Houses, amendments brought forward by Opposition Members can never be accepted as drafted and must be tweaked by the parliamentary counsel. We are proposing the insertion into section 12(2)(c) of a new subparagraph (v) which will read “encouraging access to the Internet at reasonable cost to users.” The commission's function in relation to Internet access is also included in section 10(1)(a). Obligations in respect of Internet access on operators are contained in regulations implementing EU law. There is great affinity between Deputy Higgins's amendment and my alternative. I would be glad if he would accept that my amendment reflects the spirit of the amendment in his name.

Is the Minister in a position to provide the wording?

It will have to be written down and introduced on Report Stage. How do we proceed in that regard?

We can recommit the Bill in respect of the amendment on Report Stage with the agreement of the House.

Having mentioned the amendment, the Minister can introduce it on Report Stage.

Are we obliged to submit it in written form?

Yes.

Mr. Higgins (Mayo): The Minister has gone a long way towards meeting my concerns. Her wording appears to be acceptable. I will not argue about the difference between the terms “promoting” and “encouraging” or those of “reasonable prices” and “affordable prices”. I will withdraw the amendment. We can debate the matter further on Report Stage.

Amendment, by leave, withdrawn.

(Mayo): I move amendment No. 8:

In page 14, between lines 24 and 25, to insert the following subsection:

"(8) The Commission may require an operator to provide other operators with bitstream services and flat-rate interconnection services and set prices for these services. The Commission may exercise this power at its own initiative, or at the request of an operator.".

This amendment addresses the same issue as that dealt with by amendment No. 7. Essentially, it underpins the aspirations to be achieved by the proposed amendment the Minister has just undertaken to introduce on Report Stage.

This amendment proposes giving the commission powers to require operators to provide other operators with bitstream services and flat-rate interconnection services. This proposal is addressed in the new EU electronic communications regulatory package adopted recently. The appropriate powers will be given to the regulatory commission when the directives are transposed into Irish law this year. If we were to deal with this matter now, the Deputy's proposal would be insufficient.

There are many complex aspects that would have to be addressed if we were to deal with the proposal. These include the type of operators to which the obligation would apply – under EU rules, the policy would be to only impose the main regulatory obligations on operators with significant market power – to define the markets and all sorts of other matters. These issues would have to be addressed if this obligation were to be proposed.

The Deputy is proposing that the commission would require "an operator to provide other operators with bitstream services and flat-rate interconnection services and set prices for these services." The amendment elaborates somewhat on what I said on Second Stage, namely, that the difficulties arising are where the incumbent will be forced to provide access to existing facilities. The Deputy's proposal is addressed in the new EU electronic communications regulatory package adopted recently and powers, not just the two to which the amendment refers but many others, will be given to the regulatory commission. The package deals with the types of network access that are to be allowed, the way in which charges for the service can be calculated, the powers of the commission to amend the terms and conditions, etc. What the Deputy is bringing forward in the shape of a very fine amendment will be adopted within the next six to eight months under the EU electronic communications regulatory package. I will read into the record the full text of the directive when my officials procure it for me.

Amendment, by leave, withdrawn.
Section 12 agreed to.
Sections 13 to 16, inclusive, agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."

(Mayo): I have a brief observation. The section should make clear that designation of the deputy commissioner, that is, somebody who can assume the full powers and functions of the office of the communications commission, should be limited to officers of the commission and specifically exclude consultants to protect the independence of the commission. The reason I raise this—

It relates to what the Deputy said earlier.

(Mayo): That is correct. When the current incumbent at the head of the ODTR left the country or was unable to fulfil her function she vested her powers in a person who was also a consultant. While this person has now left the ODTR, the decision was obviously wrong because it left open the possibility of the independence of the ODTR being compromised. The person chosen should be an officer of the commission rather than a member of the staff, as these can be consultants.

I completely understand the Deputy's point because it relates to a case which was in the public arena about six or nine months. Section 17 states: "The Commission shall, where there is not more than one Commissioner appointed under section 15, designate a member of its staff as a deputy member of the Commission (“deputy commissioner”) who shall assume and carry out with the authority of the Commission all of the functions of the Commission in the absence of the Commissioner”. This section requires the commission to designate a member of its staff as a deputy member of the commission to assume the authority of the commission where there is not more than one commissioner. The Deputy's point is that the person in question should be an officer rather than a member of the staff. However, “staff” implies permanency whereas “consultancy” does not. I understand that the case to which the Deputy refers involved a temporary consultant who was operating as a member of staff.

Question put and agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

On subsection (2), which relates to the conditions or regulations which apply to the removal from office of a commissioner, are these usual? Of the reasons for the Minister to remove a commissioner, the one which strikes me is "for stated misbehaviour", on which the Minister must also make a statement to be laid before the Houses. Is this a new departure?

This provision was in the 1996 Act, introduced by the Government of which the Deputy's party was a member. Interestingly, I do not recall, although I could be wrong, that it was in the Aviation Regulation Act. It is a good provision which protects the regulator and the Minister who must give an account to the Oireachtas of the reasons a person is being removed. I will try to find out if the provision was in the Aviation Regulation Act. It was in the Electricity Regulation Act.

Question put and agreed to.
Sections 19 to 24, inclusive, agreed to.
SECTION 25.
Amendment No. 9 not moved.

(Mayo): I move amendment No. 10:

In page 20, lines 37 to 46, to delete subsections (5) to (7).

I oppose the subsections which relate to the disclosure of interests and possible conflicts of interest. Section 25(1) states:

Where a Commissioner, a member of the staff of the Commission, or a consultant, adviser or other person engaged by the Commission, has a pecuniary interest or other beneficial interest in, or material to, any matter which falls to be considered by the Commission, he or she–

(a) shall disclose to the Commission or, where the disclosure is required of a Commissioner and he or she is the only Commissioner, disclose to the Minister, the nature of his or her interest in advance of any consideration of the matter,

(b) shall neither influence nor seek to influence a decision in relation to the matter,

(c) shall take no part in any consideration of the matter, unless there are compelling reasons requiring him or her to do so,

(d) if a Commissioner,

(i) shall withdraw from a meeting of the Commission for so long as the matter is being discussed or considered by the Com mission, unless there are compelling reasons requiring him or her not to so withdraw, and

(ii) shall not vote or otherwise act in relation to the matter,

and

(e) shall prepare and furnish to the Commission a statement in writing of the compelling reasons aforesaid.

Time is moving on and I do not want to delay the House.

The amendment would remove the whole section.

Mr. Higgins (Mayo): All persons employed as a commissioner, officer or member of staff should be proofed in advance in relation to possible pecuniary interests and if found to have an interest in any matter which is likely to arise, for example, in terms of shares in a company, they should not be allowed to be a member, officer or staff member of the commission. We are setting down an elaborate procedure to cross-check for possible conflicts of interest which could influence decisions. A person with a pecuniary interest that could in any way relate to deliberations on the awarding of licences or any other matter related to the telecommunications sector should not be next, nigh or near the office, whether as a commissioner, officer or staff member.

To clarify the Deputy's point, is he arguing that these issues should be discerned before the person is appointed?

(Mayo): Correct.

I cannot go along with that because it is possible that the Civil Service Commission may find that a person is whiter than white on the day of his or her appointment, only for matters to develop differently as the person's term progresses. A commissioner may be above board in every respect – I am sure this will be the case given how rare such conflicts of interest are – yet, to take the worst case scenario, in the course of his or her duties matters could arise which would influence him or her, or he or she may expose a character trait which did not emerge during the interview process. Therefore, despite qualifying, for example, under the standards in public office codes, a commissioner could transgress or fall by the wayside, so to speak, in the course of his or her duties. This is what the subsection is about.

(Mayo): I reiterate the point that the subsection opens up all kinds of possibilities. I note that a person who has an interest in a matter must, for example, make a statement about it, leave a meeting when it is being discussed and in no way seek to influence decisions related to the issue. Subsection (2) states:

For the purposes of this section but without prejudice to the generality of subsection (1), a person shall be regarded as having a beneficial interest if–

(a) he or she or any nominee of his or her is a member of a company or any other body which has a beneficial interest in, or material to, a matter referred to in that subsection,

(b) he or she is in partnership with or is in the employment of a person who has a beneficial interest in, or material to, such a matter, or

(c) he or she is a party to any arrangement or agreement (whether or not enforceable) concerning land to which such a matter relates.

Members of the Garda Síochána should stick to their job. I believe in the old saying, "one person, one shop", and the same applies in this case. If one is in an office which is making key commercial decisions, there should not be a provision to allow him or her to have a partnership in a company or to be a nominee. He or she must leave the meeting as he or she must not seek to influence it. The operation and staff should be at arm's length from it. I am not only talking about someone leaving a meeting or not seeking to influence a decision, the person should not be within an ass's roar of the operation.

The Deputy's point means that any undesirable leanings would have to be observed at the interview stage or during the appointment process. Every day in the business pages of every newspaper we find cases where employees, sometimes at a high level, stand accused of matters which do not follow the laws of interviews. Our proposals may be overly zealous, but I do not make any apology for being overly cautious or seeking to discern and deal with anything which might later develop if, for some unfathomable reason, the incumbent becomes greedy and seeks pecuniary aid. I am only talking about exceptional cases. It is better to be overly zealous when dealing with it if it happens rather than asking afterwards the reason statutory means were not provided to deal with the transgression. Otherwise, the employer, that is, the Minister or the Government, could be open to litigation by the employee if attempts are made to remove him or her. He or she will want to know on what grounds they are being removed. There could be cases of unlawful dismissal and all types of allegations. We have come across issues in the Department in the five years I have been there. I am not talking about the civil servants, but about the companies with which we must deal. Who could have known what was going to happen in one State company last year? We do not know the outcome of that situation. People change and move. I do not make any apology for being overly zealous in that regard.

There is no reference in the section to the beneficial interest of a spouse, partner or family member. We should address the issue of a close relative or partner who has a substantial holding in a company.

The Deputy is moving into the domain of the rights of individuals and pillow talk. Individuals, whether partners or close family members, have rights. We must sign declarations every year about our families and they must be clearly set out. However, one must ask if people know what their sons, daughters or partners are engaged in. We cannot curtail the rights of individual close relatives. It would be difficult to do so. We must all sign up to the Ethics in Public Office Act, 1995.

What is required here is less restrictive than what is required of Members of the Oireachtas.

They must also sign up.

Mr. Higgins (Mayo): What is here is less restrictive than the Gas (Interim) (Regulation) Bill which was passed less than one month ago. It specifies members of the household.

Does it?

Mr. Higgins (Mayo): Yes. We had a long debate on Committee Stage about the word “household”. Deputy O'Shea's point should be taken into consideration. It was referred to in the Gas (Interim) (Regulation) Bill. This is a parallel situation, yet there is no reference in the Bill to spouse, partner or a member of the household.

The Deputy wanted to remove it.

Mr. Higgins (Mayo): The Minister said she was zealous. I am being overly zealous.

The Deputy wants to include everything. He is being overly zealous in his liberality.

(Mayo): It is the other way. Deputy O'Shea and I have raised an important point. Why is there a difference between this Bill and the Gas (Interim) (Regulation) Bill which refers to the possibility of pillow talk? A member of the household is referred to in specific terms in two or three sections of that Bill.

While I know about that Bill, I did not deal with it in the Dáil. I will come back to the Deputy on that point.

(Mayo): I suspect the civil servants who dealt with that Bill have gone home.

Perhaps the Minister could come back to us on Report Stage if a small adjustment must be made.

I remind the House about the time limit for the debate. We must complete the Bill at 6.15 p.m.

It is not in the Aviation Regulation Act.

Amendment, by leave, withdrawn.
Section 25 agreed to.
Sections 26 to 34, inclusive, agreed to.
SECTION 35.
Question proposed: "That section 35 be deleted."

Section 35 provides for co-operation between the Commission for Communications Regulation and the Competition Authority. This provision has been overtaken by events because the recent enactment of the Competition Act, 2002, which was signed into law provided for co-operation between the Competition Authority and the commission. The provision for co-operation between the two bodies builds on and enhances the measures we have. Therefore, I ask Members to accept the deletion of the section. We spoke about this when Deputies asked me about the Competition Authority.

As regards the sharing of confidential information which is part of the section the Minister wants to delete, is that part of the legislation?

Yes, it is.

Is that fair or proper? If information is given confidentially to the new commission, it can pass it on to another body, the Competition Authority in this case.

I am informed that would be treated in the same way, although I do not know how a confidence given to number one should be treated when it goes to number two. We all know that a secret once told is retold and retold. However, it is treated in the same way and in a confidential manner. Is that what I was asked?

Yes, but I am concerned about cases where there is criminal activity and where an organisation gets information from that, or if there is a case of non-compliance. I am concerned about commercial information. Is it proper that information should pass between the two bodies when it is given in confidence to one body?

The Deputy is talking about the compliance of one body with another. However, if information is given confidentially but is needed in the enactment of the duties of the other body, it is proper that it is passed on. That is the nature of confidentiality and the usage of information as would be necessary under the proposed legislation. This section of the Bill, which is now surplus, provided for co-operation between the Commission for Communications Regulation and the Competition Authority. This provision has been overtaken by events, particularly the recent enactment of the Competition Act which was signed into law and allows for and builds upon the measures there. If a confidential matter was given to the Commission for Communications Regulation and that matter was necessary for the enactment of either that Act or the Competition Act and was passed in confidence to the Competition Authority, it is right and proper that it be used as such.

Question put and agreed to.
Sections 36 and 37 agreed to.
SECTION 38.
Question proposed: "That section 38 stand part of the Bill."

(Mayo): The Wireless Telegraphy Act, 1926, is the sponsoring legislation here. Section 38 states that regulations shall not be made by the commission under that Act other than with the consent of the Minister. In the Supreme Court case, the Laurentiu decision, Mr. Justice Keane cast serious doubt over the constitutionality of the 1926 Act. I know that the Minister said that anything can be challenged, but the general feeling is that the judge's observations should be taken very seriously. There is a major question as to the constitutionality of the 1926 Act. I do not know whether the Attorney General has advised to this effect.

This section provides that regulations should not be made by the commission under section 6 of the Wireless Telegraphy Act, 1926, other than with the consent of the Minister. Section 6 enabled the Minister to make regulations with regard to licences granted under that Act, including their form and the manner in which such licences may be suspended or revoked etc. This power was transferred to the ODTR under the 1996 Act and it is proposed to now pass it on to the commission following the 1996 Act and this Bill.

If the Government took this amendment, the commission would be empowered to introduce secondary legislation and this is a function of the Minister of the day. It is not appropriate to transfer such legislative powers to an unelected executive body such as the commission. The compilation, production and enactment of legislation should be within the remit of the Oireachtas and the Minister of the day. This would take that away from the Minister.

(Mayo): I understand what the Minister is saying. However, in the wake of the Laurentiu case where the judge cast doubt upon the constitutionality of the 1926 Act, did the Department at that stage look at his judgment from the point of view of making a definitive decision in relation to whether the Act stands the test of time after 70 or 80 years?

The Government is reviewing the 1926 Act anyway. It is in the legislative programme and we have started to draft the heads of a Bill. That may call into question both this issue and the earlier one raised by Deputy Higgins. It might be helpful to do that.

Question put and agreed to.
Section 39 agreed to.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill."

With regard to enforcement, I want to raise the issue of offences on indictment as against summary offences. Is there any mechanism that could be put in place to expedite prosecutions under indictment. I am not suggesting that we seek to influence the DPP's independent office but because of the delays in that office, the new fines, including those of 10% of turnover, are self-defeating if there are gaps of years between the offence and the matter coming before the courts.

It is not for me to tell the DPP to adopt a mechanism nor is it in the remit of my office to tell the DPP how to run his. I take the Deputy's point that where we go to the trouble of having huge fines to act as a deterrent, the effect of that will be lost if the imposition of those fines takes a long time. Yet, indictable offences reach all sections of life. When a certain amount of money is reached, offences become indictable offences. It is not my job to work out an initiative on how the DPP should deal with that smartly. I am not saying that the DPP is not smart and hope that I do not get a letter about this. However, he is independent in the execution of his duties and I cannot make further observations on that matter.

Obviously, the independence of the DPP's office is sacrosanct and no one can be seen to apply pressure in that regard. However, if a special new section was set up within that office to deal with this area, there could be a way around this. I understand that this is not within the Minister's remit and that she cannot deal with it, but this issue is serious enough in terms of the development of the sector that something like that could be proposed to Government.

I do not disagree with the Deputy but I could not do that. It is not my job to encroach upon the independence of the DPP's office or to make provisions for him.

Question put and agreed to.
Sections 41 to 44, inclusive, agreed to.
SECTION 45.

I move amendment No. 11:

In page 30, subsection (1)(b), line 9, to delete “Regulation” and substitute “regulation”.

This is a technical amendment to change a letter from capital to lower case.

Amendment agreed to.

(Mayo): I move amendment No. 12:

In page 30, subsection (1)(ii)(II), line 22, to delete "make to the Commission a payment of €1,000" and substitute "pay to the Commission such sum as the Commission may prescribe".

This amendment speaks for itself.

Is it to delete the figure of €1,000 for the on the spot fine?

(Mayo): Yes. It is to pay the commission such sum as the commission may prescribe, in other words, horses for courses. The commission would have the right to decide what the on the spot fine would be.

I do not think that would be right. The Parliamentary Counsel has advised against this amendment for legal reasons. One should trust one's own common sense. The section provides for an on the spot fine. By law, the on the spot fine must be less than the fine for the summary offence. The standard practice is to have the on the spot fine set at about one third of the full fine. The Parliamentary Counsel has advised that it would not be legal to empower the commissioner to make the on the spot fine.

Amendment, by leave, withdrawn.
Section 45, as amended, agreed to.
Section 46 agreed to.
SECTION 47.

I move amendment No. 13:

In page 31, line 23, to delete "on" and substitute ", on".

This is a minor drafting amendment to correct an error in the existing text. It will have the effect of inserting a comma.

Amendment agreed to.

(Mayo): I move amendment No. 14:

In page 31, between lines 34 and 35, to insert the following:

"(3) Appeals against decisions of the Commission shall be conducted only by way of judicial review. Pending the outcome of the judicial review proceedings the decision of the Commission shall remain in force unless the court decides that it should be suspended.".

This is a very important amendment and was recommended by many people. We talked about the tardiness in preparing cases and getting them to court. There are often reserved judgments and appeals. It proposes that appeals shall be conducted by way of judicial review which is a much faster process if more expensive. Pending the outcome of the judicial review proceedings, the decision of the commission shall stand in force and shall be upheld until such time as a decision has come from the judicial review. The two elements of the amendment are judicial review and that the decision by the commission should stand.

The proposal is contrary to the policy of my Department and other Departments that aggrieved parties should have access to an administrative appeals process where the merits of the case can be considered in addition to a review of the procedures. The concept of appeals on the merits of a case is also enshrined in the new EU electronic communications regulatory package of five directives which are now to be transposed into Irish law. We will have the package within the next six months. I oppose the amendment for that reason only.

(Mayo): Based on the experience to date, there will be court challenges which will take a long time to prepare and come to hearing, followed by an appeal process. The courts will be ruthlessly used to stymie the directives of the regulator. Everybody I have spoken to seems to agree that judicial review is the way to do it.

That was in the regime which this Bill will change. Any operator who would risk a fine of €4 million or 10% of their operating profit, whichever is the greater, is a bit of a fool. I am proposing an amendment on Report Stage.

That concludes the debate on Third, Fourth and Fifth Stages. As it is now 6.15 p.m. I am required to put the following question in accordance with an order of the Dáil of today: "That the amendments set down by the Minister for Public Enterprise for Committee Stage and not disposed of are hereby made to the Bill; in respect of each of the sections undisposed of other than section 35, the section, or as appropriate the section as amended, is hereby agreed to on Committee; that the First and Second Schedules and the Title are hereby agreed to on Committee; the Bill as amended is accordingly reported to the House; the amendments set down by the Minister for Public Enterprise for Fourth Stage and not disposed of are hereby made to the Bill; Fourth Stage is hereby completed and the Bill is hereby passed."

Question put and agreed to.

The Bill, which was considered by virtue of Article 20.2.2º of the Constitution as a Bill initiated in Dáil Éireann, will now be sent to the Seanad.

It should not be made that easy for the Minister.

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